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Aggressive Advertising (attorney marketing)

Aggressive Advertising

Will Changes In Marketing Standards For Lawyers Generate Local TV Spots With Bikini-Clad Paralegals?

Peter Miller, a Little Rock attorney who handles mostly personal injury suits, isn't your typical pin-striped lawyer poring over legal briefs and inspecting court documents. Miller represents a new breed of attorney who aggressively seeks out cases wherever he can find them. He wants your business and is using methods that might evoke images of the stereotypical ambulance chaser to try and get it. The methods are nonetheless considered aboveboard by the U.S. Supreme Court.

"I find that direct mail is pretty much a waste of time," Miller explains. "TV advertising works the best along with word of mouth. The whole idea is to keep your name in front of potential clients."

Of all the advertising mediums, Miller likes TV the best. "The value of TV is that it's immediate," he says. "If I run an ad at 9:12, I'll get three phone calls by 9:15."

While most lawyers and many lay people might find the practice of direct solicitation disturbing, there is a growing movement toward fewer restrictions on marketing and advertising for attorneys.

Supporters argue that lawyers should be able to exercise the same basic rights as other businessmen who are allowed to market their services. Traditionalists counter that it cheapens the profession and casts a negative shadow on lawyers while further eroding public opinion.

Therein lies the basic controversy: Is lawyering a profession or a business?

Miller is one of only a few Little Rock lawyers who uses direct mail solicitations. Names of potential clients are generated by reviewing accident reports and similar documents available for public inspection.

Miller's "prospecting" is pure free-market capitalism that any successful businessman can recognize. Most Arkansas lawyers feel uncomfortable with the practice, but it is considered fair game these days.

A minority of lawyers take the direct approach one step further and make contact with potential clients via phone or personal visit. For them, a sales lead can be a news report of a house fire in which a teenage girl is severely burned and other members of her family are injured. Is this technique going too far? YES, SAYS GARY EUBANKS, a Little Rock-based personal injury attorney who pioneered the use of advertising in the central Arkansas legal marketplace.

"I'm opposed to that on principle, one; and two, we're supposed to be playing by a set of rules, and they're breaking it," Eubanks says of those lawyers who call on prospective clients without an invitation.

That observation might seem odd coming from Eubanks who popularized the ad slogan of Gary Eubanks & Associates, "If we don't win your case, you don't owe us a dime." Advertising has contributed to his successful law practice and even made Eubanks a celebrity of sorts whose autograph is occasionally requested.

For him, TV, radio and print ads are one thing, but direct solicitation is another. Eubank's position on both issues is founded on the Arkansas Bar Association's Model Rules of Professional Conduct.

Personal solicitation of prospective clients is considered taboo by most of the legal community, and this breach of conduct could result in the suspension of an attorney's license to practice law in Arkansas for as long as two years.

Although such behavior is deemed unethical by most lawyers and can result in suspension, personal solicitation is not illegal. Some would argue the state code runs afoul of the right to free speech protected by the U.S. Constitution.

Conversely, direct mail solicitation is considered legal and will soon be considered ethical under the ABA's Model Rules, owing to a recent decision by the U.S. Supreme Court. As a result of the ruling, a revision of the Arkansas code is now in the works despite the opinion of most Arkansas attorneys who oppose the practice as a matter of policy. FOLLOWING THE U.S. Supreme Court's landmark decision in the Bates case 12 years ago, advertising by lawyers became permissible. In 1978, the Little Rock firm of Haskins Eubanks & Wilson became the first lawyers to advertise in Arkansas. Two years later, Eubanks had formed his own firm and ran the first TV spot in Arkansas featuring a law firm.

`It was so innocuous that we didn't get any phone calls at all," he recalls with a laugh.

Innocuous perhaps, but the TV ad still caused a stir in its day. Ten years later, it's possible to see an attorney touting himself through bumper stickers that warn fellow motorists to "Back Off! My Lawyer Is Lowber Hendricks."

Traditionalists frown on the apparent frivolity of this menacing yet humorous advertisement. They believe such tactics are inappropriate considering the serious nature of law and the judicial process.

Hendricks' bumper sticker is unusual, but it is tame by comparison with other advertising from around the nation. For instance, one California lawyer and his bikini-clad paralegals emerge from beneath the waters of a swimming pool complete with snorkels in a TV commercial. Their message? "If you're drowning in legal problems, come see us."

These kind of commercials are the stuff great debates are made of for organizations like the American Trial Lawyers Association. There's even been some movement to create a taste test for lawyer advertising.

"I don't think there should be any restrictions on style or content except that it has to be truthful," states Peter Miller. "I don't think the Constitution of the United States prohibits free speech or that a quasi-governmental organization can determine what constitutes good taste."

Some lawyers are warning that the profession may face a whiplash effect in the form of legislative restrictions and unsympathetic jurors thanks to attorneys who have overloaded the public's tolerance level for tacky ads.

"That's a bunch of crap," Miller exclaims. "You'd be amazed that 12 people sitting there in a jury are a most perceptive unit. Even with all their prejudices and different backgrounds, they're fair and do the right thing about 95 percent of the time."

The recent ruling on direct mail solicitations is an indication that the prevailing sentiment of the nation's highest court leans toward viewing attorneys as businessmen with law degrees when it comes to advertising. As long as the ads aren't misleading, then most everything seems to be fair game.

An example of one attorney who stepped over the line occurred back East. He boasted of his experience as a trial lawyer by referring to the hundreds and hundreds of cases he had tried in the last few years.

The problem was that most every one of the cases involved traffic violations. His attempt to create a false impression and mislead the public into hiring him as a big-time trial lawyer was obvious.

It's unclear when Arkansas might adopt certification standards as other states have done that allow attorneys to advertise expertise in specific areas of law. Some Arkansas lawyers capitalize on this loophole and advertise a practice that covers everything from wills and divorce suits to criminal law and personal injury. They use this broad brush marketing approach to woo prospective clients that may eventually be passed along to a more qualified lawyer in return for a referral fee.

This practice is disturbing to Gary Eubanks and others. "If we are not going to have specialization, the evils of advertising outweigh the good," Eubanks observes.

Despite these concerns, attorney advertising continues to break new ground, and less restrictions seem inevitable. What will be implications of this trend be, bikini-clad paralegals and all? The jury is still out on that one.

PHOTO : Standards for lawyer advertising are becoming too liberal, according to Little Rock

PHOTO : attorney Gary Eubanks, who helped pioneer advertising in Arkansas.

PHOTO : For Gary Eubanks, Yellow Page advertisements are acceptable, but direct solicitation by

PHOTO : lawyers is going too far.
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Author:Waldon, George
Publication:Arkansas Business
Date:Feb 12, 1990
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