Battles over lawyer advertising divide the bar

ALBUQUERQUE, N.M. -- Ron Bell's face is too big to miss on the highway billboard that advertises his legal services on one side and on the other, Pizza Hut. This year, someone shot an arrow right between his smiling eyes. For weeks it stuck there, like an emblem of the backlash over lawyer advertising that has divided the legal community here and across the country.

Bell, a personal injury lawyer whose small stature and extravagant appetite for publicity are legendary in New Mexico, was not fazed by the use of his forehead for target practice.

"I got great free radio on that," he recalled with glee as he drove past his sign on Interstate 25 in a white Mercedes with NM LAW license plates. "I was the very first lawyer billboard in America." He also claims the first full-page ad in the Yellow Pages of the U.S. West telephone directory and the first lawyer ad on MTV. But 20 years after the U.S. Supreme Court opened the door to lawyer advertising on First Amendment grounds, the establishment trial bar is trying to crack down on maverick competitors like Bell. The lawyers disciplinary board of the New Mexico Supreme Court has slapped him with a year's probation and threatened him with disbarment for violating its legal advertising rules, and he is fighting back with a federal suit. It is one of many such battles being waged around the country as the old-line leaders of disciplinary boards and state bar associations from Florida and Nevada to Iowa and New York try to rein in their more freewheeling colleagues. Depending on one's perspective, they are part of a last-ditch struggle for the soul of the legal profession, or a crass conflict for economic advantage by the old-boys' club, waged at the expense of free speech principles. "Lawyer advertising adversely affects the respect the public has for the judicial system and the administration of justice," said Richard Ransom, the retired chief justice of the New Mexico Supreme Court who spearheaded the adoption of tough advertising rules in 1992. Counters Victor Marshall, the lawyer who is representing Bell in his federal suit against the board, which ruled that some of Bell's ads could be misleading: "The rules are unconstitutional as written and even more so as applied. Members of the public have seen his ads five hundred million times without ever claiming that they were misled. The only people who actually complained are other lawyers." A changing and even contradictory patchwork of state regulations governs lawyer advertising, but since the 1977 Bates vs. State Bar of Arizona decision, the country's highest court has repeatedly held that the content of lawyer advertising cannot be constitutionally restricted except to prevent false, deceptive or misleading communication. Nevertheless, many state bar regulators have used those parameters to try to govern everything from the kind of music allowed in a lawyer commercial to the exact size of a disclaimer like "lawyer advertisement." Lawyer advertising has grown every year since 1977, according to William Hornsby, director of the American Bar Association's Commission on Advertising. Television advertising by lawyers reached $157 million last year, and they spent $627 million on ads in Yellow Pages in 1966, up from $447 million only four years earlier. At best, the results of laying down the law to colleagues who wander in this commercial wilderness can mystify the public. A Rochester, N.Y., lawyer was recently allowed to use a vulgarism in an ad calling himself the meanest advocate in town, but was censured for advertising with the words "Shapiro Legal Clinic" because it could mislead people about the breadth of his practice. In Florida, where some of the country's most restrictive rules just became stricter, only instrumental music is allowed in lawyer commercials, which means ads could use Jimmy Hendrix's version of the national anthem, but not a choir's rendition of God Bless America. When Brad Slutsky, a lawyer at the Atlanta law firm of King & Spaulding, tried to make the firm's World Wide Web site abide by advertising rules for every state, he found many of the required disclaimers so contradictory, he said, that even his effort to compile them in a 500-word statement is out of compliance in some states. The special problems of regulating lawyer advertising on the Internet will be considered at the American Bar Association's annual meeting next month. Among the many ads rejected by the New Mexico screening committee under the state's 1992 rules was a bumper sticker featuring an alligator and the line "Tail Gators Beware ... My lawyer is Ron Bell!" Another rejected ad was a television dramatization showing a happy woman leaving Bell's office with an 8-by-4-foot check as the lawyer turned to the camera and said, "I can't guarantee that I can get you a check that big, but I will evaluate your case free of charge." The committee also turned down a television commercial of his showing children driving toy cars in a dramatization that warned against drunk driving. The words "lawyer advertisement" were not big enough, the committee said. But the same committee approved "Ron's Biker Babes," an ad Bell himself calls "terrible" and "very tacky," in which the lawyer, clad in black leather, makes his pitch to accident victims beside hulking motorcycle dudes and their scantily dressed female companions. "If it's in poor taste, that's not an issue," said Frank Spring, the former chairman of the Legal Advertising Committee of the Disciplinary Board, whose practice is part of a personal injury law partnership in a no-frills, institutional building a block away from Bell's hacienda-style office that features his name etched in gothic lettering on the glass transom. Unlike Bell, 47, who moved here from Philadelphia in a Fiat in the early 1980s, Spring is a native Southwesterner who grew up across the Texas border in a town of 1,200 people where his grandfather owned the general store and his father was a banker. "My values, to be candid, are small-town values," said Spring, 54, who wore chinos and an open-collared shirt and was leaving early for a trout fishing trip in the Pecos Mountains. He called lawyer advertising "demeaning" and "distasteful" and lamented its role in fueling settlement mills where clients get short shrift. "Are we going to become simply commercial entities or focus on getting justice for people?" he asked. Bell's reaction to such high-minded concerns by his competitors is derisive. "They want justice, shuddup!" he said with a dismissive wave of his hand. "Our entire remedy in civil justice in America is a check. I want to get the case, and I want to get the check." Underlying the principled rhetoric of their opponents, Bell and other proponents of lawyer advertising contend, is fear of price competition that would benefit the consumer. "Whether you make Ron back off or not, it won't matter anyway," said Bell, who likes to speak of himself in the third person, "because there's some guy who's going to come out of law school and put up a big sign that says `25 percent.'" The standard contingency fee that trial lawyers collect from the settlements or damage awards they win is now a third plus costs. But in the Queen Anne-style house where Stephen Durkovich runs his successful law practice a block from the hospital where he was born, he and his partners denounce lawyer advertising as a corrosive trend that allows inferior lawyers to prey on the poor, the uneducated and minorities. "It hurts my soul," said Durkovich, who specializes in suing doctors. He was one of the lawyers who represented the New Mexico Supreme Court when another lawyer, Terrence Revo, successfully challenged the disciplinary rules' total ban on targeted direct-mail solicitation by lawyers. A $60,000 poll commissioned by the state Supreme Court found that those with the least income and education were most likely to approve of Revo's letter, and to believe that lawyers who advertised were better than those who did not advertise. In reality, Durkovich contended, the opposite was true, which makes such ads inherently misleading to one segment of the population, while it makes the better educated even more critical of the legal profession. When Revo won, the adversaries of advertising mounted an unsuccessful appeal to the 10th U.S. Circuit Court of Appeals, and even petitioned the U.S. Supreme Court for a review. Yet only nine years earlier, in Shapero vs. Kentucky Bar Association, the Supreme Court had upheld the right of a lawyer to send letters of solicitation to victims of accidents whose names he collected from police reports, ruling that the First Amendment "does not permit a ban on certain speech merely because it is more efficient." In 1995, however, in a 5-4 decision, the court upheld Florida's 30-day moratorium on such solicitations in personal injury and wrongful death cases, largely on the grounds of protecting the privacy of vulnerable families. That decision has fueled hopes by the opponents of advertising that new restrictions was possible. Virginia Ferrara, the chief disciplinary counsel who brought the complaint against Ron Bell, is far less zealous about the issue than the board that employs her. "The bar is always saying, `Why don't you do something about Ron Bell?' " said Ms. Ferrara, who served on the American Bar Association's commission on advertising two years ago. "But his clients do not appear to be dissatisfied with him. The more established members of the bar, it drives them crazy. But there are some people in the world who identify with tacky."

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