{"id":4412,"date":"2006-03-03T23:36:10","date_gmt":"2006-03-04T03:36:10","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2006\/03\/03\/heavy-breathing-over-heavy-hi"},"modified":"2011-08-05T14:54:07","modified_gmt":"2011-08-05T18:54:07","slug":"heavy-breathing-over-heavy-hitting-lawyers","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2006\/03\/03\/heavy-breathing-over-heavy-hitting-lawyers\/","title":{"rendered":"heavy breathing over “heavy hitting” lawyers"},"content":{"rendered":"

<\/a>[Editor’s Note<\/em>:\u00a0 Please excuse all of the formatting problems below.\u00a0 A change in webservers made a mess of many of our early posts.\u00a0 We just don’t have the time to re-do thousands of postings, many (like this one) with very complicated formatting.\u00a0 So, please bear with us.]<\/p>\n

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As Carolyn Elefant (“<\/span>More Bar Silliness<\/em>: Heavy Hitter is Misleading<\/span><\/span><\/a>“)<\/span> and Ben Cowgill (“<\/span>Heavy hitters<\/em>:<\/span> here, there and everywhere<\/span><\/a>“) both reported and analyzed\u00a0today (March 3, 2006), the\u00a0regulators of<\/span> Nevada lawyer <\/span>advertising have outdone even the most harebrained of the bar’s <\/span>dignity police<\/span><\/em><\/a>. <\/span>(see our post\u00a0“MO says legal consumers<\/span><\/span> are <\/span>really stupid<\/span><\/a>“)<\/span><\/div>\n
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\"\"<\/a> “heavyHitterLerner”<\/span> Glen Lerner<\/span><\/a>, Heavy Hitter<\/em><\/span><\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n
As the Las Vegas <\/em><\/span><\/span>Review Journal<\/span><\/em><\/a> reported, p\/i lawyer Glen Lerner has<\/span> been told by the Nevada State Bar that Lerner he cannot advertise himself as “The Heavy Hitter” anymore.\u00a0 Instead:<\/span><\/div>\n
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\"at<\/span> He can merely be “a heavy hitter.”<\/span> “The bar told me by calling myself “The Heavy Hitter,” it was<\/span> false and misleading because it was stating I’m the only heavy hitter,” Lerner said. “It’s beyond ridiculous.”<\/span><\/div>\n<\/blockquote>\n
Yes, yes it is.\u00a0 As I commented at My Shingle<\/em>, Ernie Svenson may have<\/span> to start calling his weblog “<\/span>Ernie<\/em> An Attorney<\/em><\/span><\/span><\/span><\/a>.”\u00a0 But, seriously, I’m not at<\/span> all sure that the Supreme Court will find the issue as easy as Lerner’s<\/span> attorney <\/span>Dominic P. Gentile<\/span><\/a> suggests. According to the Review Journal<\/em>, “Gentile said the U.S. Supreme Court has made clear that if speech such<\/span> as Lerner’s is accurate and not misleading, then it is protected.”\u00a0 The<\/span> question is whether the Court will accede to the Bar’s expertise on just<\/span> what is misleading or deceptive in the context of choosing <\/span>attorney services.<\/div>\n
It’s not at all clear that this Supreme Court will take as\u00a0realistic a position<\/span> as the Federal Trade Commission.\u00a0 In 2002, the <\/span>FTC staff<\/span><\/a> told the\u00a0Alabama<\/span> Supreme Court that “it is best for consumers if concerns about misleading ad<\/span>vertising are addressed by adopting restrictions on advertising that are tailored<\/span> to prevent unfair or deceptive acts or practices. . . . [I]mposing overly broad re<\/span>strictions that prevent the communication of truthful and nondeceptive information<\/span> is likely to inhibit competition and to frustrate informed consumer choice.”<\/div>\n
<\/span>\"\"<\/a> ..<\/span> Martin, Harding & Mazzotti<\/span><\/a> – “The Heavy Hitters<\/em><\/span>“<\/span><\/div>\n<\/blockquote>\n
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Finally, Ben Cowgill asks “Why am I reminded of the book by Kentucky native<\/span><\/span> Philip K. Howard, <\/span>The Death of Common Sense<\/em><\/span><\/a>?”\u00a0 I agree that this type of<\/span> lawyer advertising makes no sense from the perspective of true consumer<\/span> protection.\u00a0 But, it makes a lot<\/em> of sense if — <\/span>as<\/span><\/a> I <\/span>contend<\/span><\/a> — the Bar’s real purpose is to create an atmosphere where there is far less lawyer advertising,<\/span> because they have an enormous emotional investment in\u00a0the mythic importance <\/span> and <\/span>“dignity” of the profession, and an enormous aversion to competition.<\/span><\/div>\n
update<\/span><\/strong><\/em> (March 6, 2006):\u00a0 California solo p\/i lawyer Jonathan G. Stein<\/span><\/a> seems<\/span> to be\u00a0rallying a\u00a0posse<\/a> for the Diginity Police at\u00a0his The Practice<\/em> weblog.\u00a0Complaining that ads like Lerner’s Heavy Hitter commercials make all lawyers look<\/span> bad, he says the market won’t regulate such marketing.\u00a0 He concludes:<\/span><\/div>\n
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“[I]f you don’t think that this makes all of us look bad, you are wrong.<\/span> It gives everyone a black eye. And the only way to stop it is through regulation (and remember, I am a free market economist by education). <\/span><\/div>\n<\/blockquote>\n
Carolyn <\/a><\/span>Elefant<\/a> has a well-crafted reply today called “Watch What You Wish for<\/a>.”<\/span> (via Home Office Lawyer<\/span><\/a><\/em>)\u00a0\u00a0 Carolyn makes a lot of good points (with examples of marketing Stein praises that Nevada regulators just might deem to be deceptive),<\/span> and asserts :” I know that the present system isn’t perfect.\u00a0 But I’ll take free speech<\/span> and the attendant mess that goes with it any day over regulation by a group <\/span>of law<\/span>yers.” <\/span><\/div>\n
Ms. Elefant has it right. I’d love to know what kind of regulation Stein would endorse.\u00a0 If he wants to assure<\/span> a “dignified” image for lawyers, he should realize that the public has more respect<\/span> for someone acting tacky than for someone acting pompous.\u00a0 If he agrees with the<\/span> Nevada Bar’s specious approach to “deception”\u00a0 he should indeed worry about what<\/span> he wishes for.<\/div>\n
Someone looking at Stein’s weblog<\/a> might think that the tagline “Helping law students and lawyers learn everything they wanted to know about law practice management” (emphasis added) promises rather more than it can deliver.\u00a0 Looking at his law firm website, a consumer seeing an “about us<\/a>” link might think that this solo firm has more than one lawyer, while his “Law Offices” declaration belies his one location. And, a regulator might question Stein’s definition of a “neighborhood law firm.”\u00a0 Also, a real “free market economist” might take umbrage at Stein’s touting that part of his educational background.<\/div>\n
There are lots of slippery slopes out there once the concept of “deception” is divorced from reality and reasonable consumer reactions, and is instead left in the hands of regulators who mostly don’t much like advertising.<\/div>\n
<\/strong><\/em><\/span><\/span><\/span><\/span><\/div>\n

<\/span>\"RumpolePenge\"<\/span><\/strong><\/em><\/span><\/span><\/span><\/span>
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afterthought <\/span><\/strong><\/em>(Noon, March 3):\u00a0Early this morning,\u00a0I finished<\/span><\/span><\/span><\/span> listening to the audiobook of\u00a0John Mortimer’s 2004 novel <\/span><\/span>Rumpole and the Penge Bungalow Murders<\/em><\/span><\/a>. <\/span><\/span>Throughout <\/span><\/span>this enjoyable memoir of Rumpole\u2019s\u00a0first big case, he is <\/span><\/span>chided by Queen\u2019s Inns and Equity Court versions of the<\/span><\/span> bar\u2019s <\/span>dignity police<\/em> \u2013 <\/span>pompous Heads of Chamber, like<\/span><\/span> Wynset <\/span>and Ballard, worried more about\u00a0their own perqui<\/span><\/span>sites and appearing\u00a0in <\/span>\u201cthe finest <\/strong>tradi<\/em><\/span>tions of our <\/em><\/span>great <\/em><\/span><\/span>profession<\/em>\u201d than in working <\/span>diligently to keep a client <\/span>from<\/span><\/span> the death sentence or in helping to nurture the career of<\/span><\/span> a young \u201cwhite wig\u201d lawyer. <\/span><\/span><\/div>\n
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<\/em><\/span><\/span><\/p>\n<\/div>\n


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\"RumpolePengeUK\" <\/span><\/span><\/div>\n

UK audio version<\/span><\/a><\/span><\/span><\/p>\n

Rumpole, <\/span>of course, refuses to see his role as being “a safe pair of <\/span>hands”\u00a0wearing the correct color of pants.\u00a0\u00a0 Yes, he<\/span><\/span> never <\/span>does become rich or famous, or even Head of Chambers,<\/span><\/span> but he serves his clients and profession with his zeal and<\/span><\/span> his soul intact.
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\"tiny In the haiku world, you can find true heavy-hitter haijin<\/span> in the Haiku Society of America’s journal, Frogpond<\/a><\/em>.\u00a0 For example,\u00a0our <\/span>mail carrier <\/span>brought the newest Frogpond<\/em> (XXIX: 1) to my mailbox today, <\/span>and it contains this pair from Michael Dylan Welch<\/span><\/a>:<\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n
update<\/span><\/strong><\/em> (March 10, 2006): Is Walter Olson<\/a> a secret member of the<\/span> Dignity Police Posse?<\/span><\/div>\n
foul-up<\/span> follow-up<\/span><\/strong><\/em> (March 15, 2006): n.y. heavy hitters get dumped: who you gonna sue?<\/span><\/a> <\/span><\/div>\n
update<\/span><\/strong><\/em> (March 27, 2006): In the Syracuse and Rochester region of Upstate New York,<\/span> the firm of Alexander & Catalano<\/a> has the Heavy Hitters<\/em> franchise.\u00a0 In\u00a0a recent article, in the Central New York Business Journal<\/em><\/span><\/a> (“State Bar Association tackles attorney<\/span><\/span> advertising <\/span><\/span>practices,” <\/span>March\u00a018, 2006),\u00a0 James Alexander responds to the crackdown on lawyer advertising proposed by the NYS\u00a0Bar Association\u00a0(NYSBA Press Release<\/span><\/a>,<\/span><\/span> Feb. 1, <\/span>2006): <\/span><\/span><\/div>\n
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“I think lawyers are very sensitized to advertising by other lawyers,” he says,<\/span><\/span> estimating that about two-thirds of complaints about advertising are lodged<\/span><\/span> <\/span><\/span>by lawyers. “There are many lawyers who don’t approve of advertising and think it should only be done in their idea of a dignified manner.” The problem arises when different lawyers have different opinions of what<\/span><\/span> constitutes a dignified manner. <\/span><\/span><\/div>\n
\"at “Our avertising tends to be friendly and entertaining, for the most part, and<\/span><\/span> informative,” Alexander says of the television spots that appear on all major<\/span><\/span> network affiliates and cable stations in Central New York. (Alexander and<\/span><\/span> his partner Catalano are often shown with baseball bats to illustrate their<\/span><\/span> <\/span><\/span>slogan.) Other may not agree, but it doesn’t mean the advertising is inappropriate or<\/span><\/span> misleading, he says. <\/span><\/span><\/div>\n<\/blockquote>\n
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roses on the casket<\/span><\/div>\n
shaking<\/span><\/div>\n
at the lowering<\/span><\/div>\n<\/blockquote>\n
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wedding reception —<\/span><\/div>\n
the weight of her bottle<\/span><\/div>\n
on the lip of my cup<\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n<\/blockquote>\n
<\/p>\n
michael dylan welch<\/span><\/a><\/span><\/div>\n
frogpond<\/strong><\/span><\/em><\/a> (XXIX: 1, Winter 2006)<\/span><\/div>\n

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

bonus<\/em><\/strong>: one\u00a0by michael from the newest edition of The Heron’s Nest<\/span><\/a><\/em>:<\/span> <\/span><\/div>\n
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beached kelp – <\/span><\/div>\n
we examine <\/span><\/div>\n
each other?s life lines<\/span><\/div>\n
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The Heron’s Nest<\/em> (VIII: 1, <\/span><\/span>March 2006<\/span><\/a>)<\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n
\"dodoG\"<\/span><\/div>\n<\/blockquote>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

[Editor’s Note:\u00a0 Please excuse all of the formatting problems below.\u00a0 A change in webservers made a mess of many of our early posts.\u00a0 We just don’t have the time to re-do thousands of postings, many (like this one) with very complicated formatting.\u00a0 So, please bear with us.] As Carolyn Elefant (“More Bar Silliness: Heavy Hitter […]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[2926,1],"tags":[],"class_list":["post-4412","post","type-post","status-publish","format-standard","hentry","category-pre-06-2006","category-uncategorized"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-19a","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4412","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=4412"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4412\/revisions"}],"predecessor-version":[{"id":12751,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4412\/revisions\/12751"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=4412"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=4412"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=4412"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}