Steve Cohen

By STEVE COHEN

CHARLESTON -- Except for the pristine mountain lakes, maybe, few would find much else similar between West Virginia and New York.

Interestingly, though, each is grappling this summer with reform of a problem with their legal systems, specifically, the way lawyers advertise.

According to a New York state senator, lawyers "are beginning to look like shylocks, the advertising is so outrageous."

It is a view shared by the chairman of the Senate Judiciary Committee in the Empire State, concerned the public will construe the role of a lawyer as being "to convince people to file lawsuits rather than to represent people with legitimate claims."

New York is considering new rules to govern lawyer advertising.

Lawyers there would not be able to solicit clients within 30 days of a disaster, such as the Staten Island ferry crash or even the 2001 terrorist attacks.

Under the proposed reforms, New York would assert jurisdiction over ads from out-of-state lawyers. These restrictions would also ban lawyer claims "that imply an ability to obtain results," the New York Law Journal explains.

New York would stop lawyers from "portraying judges" in their ads and the personal injury bar there has taken the proactive step to outlaw so-called "runners" to procure clients.

The standard New York seeks to impose for lawyer ads is that they are "true, accurate, fair, relevant, rational and jurisdictionally proper."

That is a good template for West Virginia to follow.

After all, we in the Mountain State are considering new rules for the way our lawyers advertise.

Just like the aforementioned legislators in New York, a member of the West Virginia Senate leadership has referred to the state of lawyer hucksterism as "a prey on society."

That earned him a "smile" on the editorial page of the Charleston Gazette, commending him for wanting "to curtail tacky, tasteless overblown lawyer ads that seem almost like ambulance chasing."

After all, a survey conducted in West Virginia not long ago showed that most of us here feel such ads encourage people to sue even when they have not been injured.

On at least one front, West Virginia is already ahead of the curve.

The Disciplinary Board here responded to a West Virginia Citizens Against Lawsuit Abuse inquiry by saying it looked with "great disfavor" on a former judge who wore a judicial robe in ads for her law practice.

The chair of the Investigative Panel wrote this spring that it "would discourage said use in future advertisements."

And West Virginia already has acknowledged the potential problem New York recognizes with claims made in lawyer ads.

Take, for example, the well-advertised West Virginia personal injury lawyer who "won't take 'no' for an answer."

Even Harvey Peyton, a leader in the West Virginia personal injury bar, told a statewide radio audience earlier this year that such a pronouncement could be inappropriate because "there are certain times when you have to."

He suggested disclaimers accompany lawyer ads, something included in New York's package.

With New York's standards adopted here, that out-of-state firm which placed ads in a local paper seeking clients from the Sago disaster, would be subject to West Virginia's watchdogs.

With the sense that the lawsuit mill was being primed in the wake of Sago, former West Virginia Supreme Court Justice Richard Neely said that "the object here should not be to have the winning ticket for the New York lottery."

No, hitting the jackpot is not what our justice system should be about. But a winning ticket we can take from New York is their model for regulating lawyer advertisements.

Steve Cohen is executive director of WV CALA, a nonprofit citizen watchdog group interested in a variety of civil justice issues. For more information, visit www.wvjusticewatch.org or write to P.O. Box 127, Charleston, WV 25321.

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