Cohen

By STEVE COHEN

CHARLESTON -- Whenever there are winners and losers, the margin between victory and defeat always can be measured.

As we begin to think about the start of football season in only a few short weeks, we can rest assured that the coach of the losing team in the much-anticipated West Virginia-Marshall football showdown in Morgantown on Sept. 2 immediately will assess what might have reversed the outcome.

It doesn't take a close review of the "game film" from the West Virginia State Bar's recent flirtation with lawyer advertising reform to know the legal profession may have fumbled the ball in a decisive moment.

West Virginians are inundated morning, noon and night with outrageous and irritating advertisements from the personal injury bar. Some ads go so far as to say, "In a wreck? Get a check!" We are invited to call 1-800-blah-blah, leaving the public with the perception that our courts dispense cash, not justice.

It's not only shameless hucksterism that people find annoying; personal injury lawyer advertising also can scare and mislead consumers and hurt our justice system.

Research conducted by West Virginia Citizens Against Lawsuit Abuse (WV CALA) found that more than three of four West Virginians feel that personal injury lawyer advertising scares citizens into filing lawsuits even when they have not been injured.

The State Bar clearly is aware of the undignified nature of personal injury lawyer advertising. Earlier this year, the Lawyer Disciplinary Board said a former state Supreme Court justice should not advertise for her law practice wearing a judicial robe. They also know these ads take away public respect for our courts, promoting our courts as a public lottery driven by personal injury lawyer greed.

However, a 19-member State Bar commission has decided there is no need for strict guidelines, no need to implement minimum standards for integrity in the advertising of legal services.

The fact that a member of the commission is one of the leading personal injury lawyer-advertisers immediately should send up a red flag about the make-up of the panel.

Even the President of the West Virginia State Bar, Robert D. Fisher, told a statewide radio audience that the ads aired by that particular commission member "runs the envelope to the edge."

The state Supreme Court will have an opportunity to speak on this issue, and there will be a public comment period.

Perhaps the five justices and citizens at-large will see what the State Bar clearly has not: that it missed an opportunity for long-needed reform on our legal landscape in West Virginia.

Here was a chance to do the right thing -- what numerous other states are addressing, including our Kentucky neighbor, and Florida, Texas and New York. Legal services should not be sold like beanbag-toss at a carnival.

The State Bar did send one winning play on to the field at its most recent quarterly meeting. It banned direct solicitation of clients for 30 days following an accident. Evidently, the Bar was embarrassed that one of their own made The Wall Street Journal for camping out at Sago mere hours after the mine disaster.

Good call. But breaking the huddle without a play to crack down on flagrant ads is where West Virginians lost. Thankfully, this game is going into overtime.

Cohen is executive director of West Virginia Citizens Against Lawsuit Abuse, a nonprofit citizen watchdog group interested in a variety of civil justice issues. For more information on WV CALA, visit www.WVJusticeWatch.org or write to P.O. Box 127, Charleston, WV 25321.

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