Former State Bar president stands by state of lawyer advertising

By John O'Brien | Jun 23, 2006

Elliot Hicks

CHARLESTON - Elliot Hicks, former president of the State Bar Association, doesn't remember ever hearing an attorney spout off a limerick during an advertisement.

He says the perceived problem with lawyer ads has more to do with the public's inability to get things out of its head.

Hicks led a meeting of the Lawyer Advertising Commission June 13, hoping to address certain concerns that have risen over the subject. He says people are misconstruing overexposure as indecency.

"It was interesting to listen to what people consider tasteless," said Hicks, now the Chairman of the Lawyer Advertising Commission and manager of the Hawkins and Parnell law firm in Charleston. "If ads run too frequently, people get confused in their minds and consider it tasteless.

"Some of the popular ads are played so much people know the jingle and the phone number. That's effectiveness."

State Senate Majority Leader Truman Chafin, an attorney from Mingo County, doesn't think so. He wrote in a recent resolution that the legal profession's once-highly regarded reputation has been damaged by "catchy limericks, jingles and punch-lines."

Hicks says citing limericks is a bit of a mistake, as is thinking major changes are needed with the Lawyer Disciplinary Board because of the current state of lawyer advertising.

"It's been portrayed as three lonely lawyers sitting in the lawyer disciplinary building doing nothing," Hicks said. "We have a 19-member panel to investigate and hear complaints.

"We have an effective mechanism, large and very influential."

Hicks says when the Disciplinary Board becomes aware with an advertising problem, such as the promise of results, it is often taken care of without charges being brought.

He said lawyers are taken aside, told of the problem and encouraged to change the advertisement. Most of the time, they comply to avoid disciplinary action.

After all, no lawyer wants bad publicity.

"The marketplace will help people police themselves," Hicks said. "They can't afford to run ads that are ineffective.

"If a lawyer loses credibility, they won't have any clients."

Former State Supreme Court Judge Margaret Workman was recently told by the Disciplinary Board that she is allowed to wear a judge's robe in advertisements for her private practice, though it would be discouraged. Citizens Against Lawsuit Abuse had filed a complaint claiming the robe could convince potential clients that Workman has extra sway with the state's judges.

Chafin says lawyers now have huge advertising budgets that help them portray themselves as "heavy hitters" who "won't take no for an answer."

"Out of all those ads out there, ones that we really find to be tasteless and unacceptable are very, very few," Hicks said. "Those found tasteless by most people are because of their frequency. It's not anything to do with the ad or misleading statements."

Hicks said one of the jobs of his committee is to look at advertisements in other states to see how West Virginia compares. The situation in Iowa, he says, has restrictions that have left attorneys advertising their "name, rank and serial number, and that's it."

He added, "What they try to do is render it ineffective so people won't do it.

"We have people from all over the state on our commission. It was interesting how many different ads we see, like from the Northern Panhandle where you have the Pittsburgh lawyers. We're in the center of the state and not influenced by many lawyers who aren't West Virginia lawyers."

As far as Chafin and the rest of the Legislature getting involved, Hicks doesn't seemed concerned even though Chafin has called for a subcommittee to study "the feasibility and attendant legal ramifications, part and parcel of any proposed legislation designed to stringently restrict and suppress the current perimeters within which lawyers advertise."

"To say the Legislature is involved in this is not accurate. There is a legislator involved," he said. "The Governor hasn't called for a special session on this. It's not an aspect of his State of the State Address."

The committee's proposal will look a lot like the one it put forth in 1999, though it will not offer a standing commission on the matter. Hicks said "It's too cumbersome."

What it will offer are better guidelines for the Disciplinary Board to follow, he said.

But any limericks out there, for now, will continue.

"A lot of things people complain about are not going to change," Hicks said. "Lawyers find advertising to be effective or they wouldn't do it.

"You will see more disclaimers when a person isn't a client. When it's an actor, there will be things that tell you that. But you won't see a change in the frequency of advertising."

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