Vin Suprynowicz

The Libertarian

Vin Suprynowicz

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STEP RIGHT UP, HE'S THE HEAVY HITTER

At the request of the State Bar of Nevada, the Nevada Supreme Court last year empaneled a committee to examine lawyer advertising.

At a public meeting March 1, committee members floated proposals to change the state rules regarding acceptable solicitations for solicitors -- changes that would have to be OK’d by the State Bar’s Board of Governors and then adopted by the Supreme Court itself.

State Bar attorney Rob Bare says the recommended changes would place a greater focus on enforcement actions for false or misleading advertisements, shifting away from a previous focus on lawyer ads considered to be tasteless or offensive.

Good.

Of 1,200 complaints received by the bar annually, only about 60 deal with lawyer advertising, and two thirds of those are from other lawyers.

The bulk of the remaining public complaints focus on ads in foreign-language periodicals by lawyers who turn out not to speak the language in question; misleading contingency fee advertising in which clients find they “don’t qualify” for the low rates advertised; and attorneys who promote themselves as unusually aggressive but who turn out to settle most or all their cases without going to court.

It’s not clear any of the complainants concerned themselves with lawyers parading with the Chippendales or otherwise making spectacles of themselves.

Lawyers have a First Amendment right to advertise -- a right which further advances the public good by helping citizens find legal counsel -- though the courts have found a legitimate government interest in prohibiting advertising that’s misleading or untruthful.

Beyond that, the high court has continued to tolerate somewhat more strenuous regulation of lawyer advertising than of more generalized commercial speech, though Justice Powell, writing for a unanimous court in 1982, clarified that such regulation is permissible “only where particular advertising is inherently likely to deceive.”

The court, for instance, refused to buy arguments by Ohio regulators that lawyers shouldn’t be allowed to advertise cost comparisons and the like simply because the state might find it too hard to sort out the accurate from the misleading.

“Were we to accept the state’s argument in this case, we would have little basis for preventing the government from suppressing other forms of truthful and non-deceptive advertising simply to spare itself the trouble of distinguishing such advertising from false or deceptive advertising,” wrote Justice Byron White in the Zauderer decision, 1985.

Nevada regulators -- if they’re to continue this undertaking at all -- would be well advised to concentrate their efforts on lawyers who advertise rates or levels of performance which turn out to be inaccurate or misleading, and to shift away from focusing on lawyer ads where the main offense seems to be a lack of dignity and decorum.

Local ambulance chaser Glen Lerner, for instance, says the bar has told him he can no longer promote himself as “The Heavy Hitter,” on the theory that the legal fraternity may well contain other “heavy hitters,”

“The bar told me by calling myself ‘The Heavy Hitter’ it was false and misleading because I was stating I’m the only heavy hitter,” Mr. Lerner said this week. “It’s beyond ridiculous.”

Shall we presume “The Cleanup Man” would also be out, unless Mr. Lerner can show he mops his own floors?

The bar further asked Mr. Lerner to suspend a TV ad in which a giant telephone was seen to fall on an unprepared litigant.

“They said it created anxiety,” Mr. Lerner says. “Does the average person really believe a giant phone is going to land on them?”

The bar has no business serving as literary reviewer or television artistic consultant. If in specific cases they believe some of these high-profile barristers are misleading potential clients into believing they’ll receive personal attention and court representation from the guy on TV -- when in fact their cases will almost certainly be “farmed out” to other attorneys and settled on some fixed rate schedule -- the bar should concentrate on remedying such specific misimpressions, rather than applying a silly level of literalness to claims which viewers of normal sophistication will easily interpret as “sales talk.”

Most folks realize the knife won’t cut through bolts and still slice tomatoes; the miracle cream doesn’t really eliminate embarrassing age spots; the toy is not at all easy to assemble; you can’t lose weight by eating that stuff, and you’d better take your checkbook if you’re planning to buy with “no money down.”

The gentlemen and ladies of the bar might highly prefer it if self-promoters like Mr. Lerner were a tad more dignified. But a robust free market will and must be allowed to pass its own judgment.

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