Elliot Hicks

By ELLIOT HICKS

CHARLESTON -- The West Virginia Record's editorial in the June 26 edition showed concern that lawyers sometimes run ads that you or your readers consider tasteless or unprofessional.

The editorial scoffed at the work of the State Bar's Lawyer Advertising Commission and misled people toward thinking that lawyers had done nothing to police its advertising, because you didn't report on the actual result of the Commission's meetings.

Let me tell you the rest of the story about lawyer advertising, the Advertising Commission, and what we lawyers are doing to address the issue.

Lawyers were permitted to advertise as a result of a lawsuit and a court decision styled Bates v. State Bar Of Arizona. Lawyers have only been doing this, then, for about thirty years. Some have done it with great grace. Some have done it crudely.

The Commission is a temporary investigative subcommittee of the West Virginia State Bar Board of Governors, and that's the body to which the Commission reports. The Board of Governors edits and accepts all or none of the report, and makes a recommendation on the rules the Commission will recommend to the Supreme Court, at the Board's option. The Supreme Court ultimately decides whether to make a rule, then it offers a general comment period before the rule is placed in force.

The State Bar first convened a Lawyer Advertising Commission in 1999. I chaired that Commission, too. The Commission met a number of times, studied every rule that any state had devised about lawyer advertising. We're a small state bar, and we don't have the money to be the test lawsuit on any of these issues. We made ourselves content to recommend policies that had been tested in Florida and Texas.

In 1999 we devised a set of rules that severely limited lawyers from trying to contact people soon after a tragedy, more completely described the definition of what is false and misleading advertising, and specifically discouraged the use of dramatizations and testimonials. We also offered a plan for a standing commission to review ads before they were published. The rules danced at the restrictive edge of United States Supreme Court free speech rulings specifically pertaining to lawyers.

The Board of Governors wrestled with whether the rules unfairly restricted free speech rights. There remained a lot of uncharted water around lawyer ads. The Board removed the provision for a standing commission to pre-screen ads, because it concluded that would go beyond Constitutional permissions, and because it would take a huge amount of volunteer manpower to staff the standing commission.

The Board sent a recommendation to the Supreme Court recommending only the tight restrictions on directly soliciting clients in time of tragedy. The Supreme Court did not act on that offering.

Today our Commission didn't start with a blank slate. We have just completed three meetings, and about ten subcommittee meetings, over the course of three months to review the work of the 1999 Commission, to see how the landscape had changed nationally, and to decide on our final recommendation to the Board.

We certainly didn't do nothing, as you seemed to fear in your editorial. We remained committed to staying within the law on free speech, as the Supreme Court has defined it. Should I need to say that?

We offered a proposal very much like we had submitted before, but without the standing commission, with its excessive manpower needs. We took specific steps to amplify our commitment to professionalism in lawyer advertising. We offered all the other protections mentioned above. We are now putting the finishing touches on our proposal to deliver to the Board of Governors on July 25.

Contrary to the frustrations expressed in your editorial, the frequency with which ads appear still cannot be restricted. Taste means different things to different people. I speak to my type of clients one way, and another lawyer speaks to hers another.

And remember, it's not more lawyers that makes for the lawsuits you consider frivolous. Lawyers litigate their cases based on laws they largely were not in the legislature to pass and were not the judges to shape. Juries give the money.

Advertising is valued in a capitalist society as away to get information out to the masses. We may have some growing pains to endure with lawyer advertising, but it will certainly evolve to give people better access to legal service providers who compete on the basis of cost and quality. One can be cynical about that statement, but that idea is a foundation of our economic system.

Try not to get lost in the rant, designing your own version of a Utopia where lawyers are restricted in making the public aware of their competitive advantages. The Lawyer Advertising Commission wanted to do all it could to enhance the professionalism of the profession, while living in the reality of the free speech laws by which we have to abide.

Hicks is chairman of the Lawyer Advertising Commission. He can be reached via e-mail at ehicks@hplegal.com.

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