The call began with an unusual question: What can you do for me?
This might be a perfectly appropriate question for many calls, say to plumbers or car dealers, sellers of small electronic appliances. But as an opening gambit in a call to a criminal defense lawyer, it was so terribly wrong as to be jarring.
The change is upon us. The television commercials, the phonebook advertisements, the marketing blogs, have made their existence felt. They are changing the nature of the practice of law. They are turning clients into consumers. And those who once were clients think they’re becoming savvy consumers. The internet tells them how to do so.
I thought for a second how to respond? A free dessert with their entree? A buy one, get one free deal? Maybe new and improved lawyering?
What the called was really asking was obvious. What would I guarantee? Would I put my word on the line by making the promise they wanted to hear? Maybe offer to trade my fee for results?
The caller already had a lawyer, one who was willing to go meet him at the jail along with a few other lawyers. There would be no fee for going, and no fee for the losers of the beauty pageant. They would sit down in the windowless room and make their pitch. He would ask each the same question, and see who would say the words he wanted to hear. What can you do for me?
But the lawyer who won the tiara didn’t produce to his satisfaction guaranteed. He was still in jail, despite having paid the lawyer to get him out. Now he wanted a new lawyer to satisfy his needs. It’s not that he was unwilling to pay, but that he expected results. What can you do for me?
His first lawyer was found on the internet, where a friend used Google to identify the top few contenders for the job. It was a careful search, showing a great deal of web-smarts in making sure that the lawyers selected had the requisite experience in federal court. She carefully parsed each website to see that it contained the words, “experienced in federal criminal defense.” She knew enough to ask how many such cases the lawyer had done like the one at issue, and carefully wrote down the number beside each lawyer’s name.
I was asked the question as well. I said, “beats me. A thousand?” I never kept track. Maybe I should have, but it never dawned on me thirty years ago that somebody would expect me to keep a list of every case I ever handled. Some people kept a list of their trials, of their wins and losses. I never did. Each case was sui generis to me, so it never occurred to me that I would be called upon to give my stats.
The idea worked well for Sy Syms, whose motto was “an educated consumer is our best customer.” Of course, Sy was talking about a person buying clothing, who, at least by his theory, would appreciate the quality of his goods relative to the price. It makes sense for someone selling clothing.
It makes less sense for lawyers. It makes no sense for criminal defense lawyers. Past performance is no guarantee of future results. More importantly, we don’t sell results. Or at least we didn’t until somebody got the brilliant idea that if he just started “suggesting” that by paying him money, the desired results were “no problem.” The worst that could happen is that he got paid and the client was angry about not getting the results he paid for.
The next lawyer, seeing that he just lost a fee to the guy who “suggested’ that he could produce results, realized that he had to one-up his competition or starve. And so he did what he had to do. When asked what he could do that the other lawyer couldn’t, he had his list prepared :
In his advertising materials, Respondent included false and misleading statements regarding: his experience and his associates’ experience; the firm’s areas of practice and past case results; the assignment of cases among the attorneys in the firm; the firm’s reputation; the firm’s office locations; and the foreign language ability of the firm’s employees.
In terms of his experience, Respondent included a statement on his website and in his firm brochure that he had “worked in the legal environment for over twenty years.” Although Respondent had worked as a clerk for a law firm while in college and law school, he had only actually practiced law for about seven years when these materials were disseminated.
Respondent also overstated the experience of his associates on his website. At the time the website was published, the firm’s two associates had been admitted for less than one year, yet the website referred to the firm’s “numerous trained and experienced attorneys.” The website also included phrases describing the firm’s attorneys as “thoroughly familiar with the local court system”, “highly skilled”, possessing “wide-ranging knowledge”, and having a “deep personal knowledge of the courts, judges, and other courthouse personnel.”
Regarding the firm’s areas of practice and the types of cases handled by the attorneys, Respondent’s website included a statement that “our attorneys handle all types of legal matters in state and federal court in South Carolina” when, in fact, that was not the case. The website also stated that the firm represents clients “in every level of the South Carolina state court system”, which was not true.
Respondent’s website also stated that “[e]ach attorney with Coastal Law Firm focuses his or her practice exclusively on one area of the law [thus] each attorney is deeply familiar with the law and procedural issues related to their clients’ cases.” However, Respondent listed at least twenty-seven distinct practice areas on his website even though only three attorneys (including himself) were employed with the firm.
Respondent’s website further stated that the firm had served clients in constitutional law, civil rights, ethics and professional responsibility, and toxic torts. No lawyer in the firm had actually handled any matters in those areas; however, they were willing to accept such cases.
Additionally, Respondent’s website contained a page entitled “Consumer Protection and Products Liability Lawyer.” The page claimed that the firm has “a history of winning [products liability] cases” and that it employs “defective products liability lawyers” who “understand how to deal with both corporations and insurance companies and have a history of winning cases for our clients.” On another page on the website, Respondent stated that “At Coastal Law, our . . . product recall lawyers understand what is required in filing a medical injuries claim for manufacturer negligence in producing a hazardous drug or product leading to a dangerous product recall. We can aggressively pursue your legal rights against negligent corporations that may have introduced a product that damaged your health.” Neither Respondent nor any lawyer in his law firm had ever handled a products liability matter.
In terms of the firm’s office locations, some of Respondent’s telephone book advertisements stated that the firm had offices in Georgia and Florida. At the time, Respondent had a referral arrangement with firms located in those states and had plans to merge his firm with another South Carolina lawyer, who had offices in Georgia and Florida. Respondent’s firm, however, never actually operated offices in those states.
With respect to the foreign language ability of the firm’s employees, Respondent’s advertising materials included the phrase “We Speak Spanish” written in Spanish. None of the lawyers in the firm spoke Spanish. Only part of the time when these advertisements were published did the firm employ a staff member who spoke Spanish. The inclusion of “We Speak Spanish” in Respondent’s advertising, particularly at times when no one in the office spoke Spanish, was misleading as it implied that the firm employed Spanish- speaking attorneys.
As to the firm’s reputation, Respondent’s website included a number of statements that could not be factually substantiated such as the firm “developed a reputation over the years for outstanding results” and the firm is “recognized as an established, experienced, and reputable local Myrtle Beach law firm.” Although Respondent admitted at the hearing that the inclusion of this language was a “mistake” as his law firm had not been identified as a leading law firm or received special recognition, he claimed it was never his “intention to deceive.”
And the list went on.
In his advertising materials, Respondent improperly compared his law firm’s services to other law firms in ways that could not be factually substantiated with statements such as “best attorney available”, “most effective legal services”, and “best services possible.” Respondent acknowledged that it was inappropriate to make these comparisons to other lawyers.
And on.
Respondent admitted in his Answer that his firm brochure characterized the quality of his firm’s legal services for criminal defense clients as “tough criminal defense representation.” He also admitted that his website characterized his firm’s attorneys as: “highly skilled at obtaining bonds for their clients”; “dedicated attorneys who provide excellent legal advice”; “maintaining a high degree of professionalism” in real estate matters; and “intelligent”, “competent”, and “full service.”
And on.
Respondent’s website referred to the firm’s “expertise” in personal injury matters and the firm’s “expert nursing home litigation advisors.” The website and firm brochures also stated that the firm “specializes in several areas of law.” Respondent, however, admitted that no one in his firm was a certified specialist in any area of law.
And there is still more on the list. There is no place to end, because whatever is on the list will be on the other guy’s list as well, and each tries to outdo the other to show why he, rather than the other guy, should be the lawyer to whom the money should flow.
What can you do for me?
My answer was brief. I can defend you, nothing more. I don’t even validate parking.
Is this the question you want to answer the next time the phone rings? How low will you go to please the savvy consumer of legal services?
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
I just read the South Carolina decision in the link (I’ll spare the fastidious the name of the advocate in question). Of note (to me):
1. The “problematic” (to be extraordinarily kind) marketing materials in issue were used in tried and true Yellow Pages ads and a paper brochure. Unless the ad’s writer (lawyer or not) got involved with a web page package deal, the use of the Internet was an amplification of the (ahem) misrepresentations, neither their sole location nor their sole cause.
2. The sanction was limited to a public reprimand, $1K in costs, and, presumably, costs of defense and destruction of the offending stuff. Even on a “first offense” basis, it looks like a mere slap on the wrist. Am I seeing things.
It’s not that there weren’t sleazy marketing lawyers before, but they were subject to physical and financial limitations. Now anyone (and everyone) can be a slimebag. All they need is a dollar and a dream.
And yes, to the extent there is any deterrent value, a public reprimand is meaningless. Then again, there’s always the blawgosphere to amplify the sanction.
As consumers, we want desperately not to be taken; as consumers of legal services, there’s much more than pride on the line. It’s easy for Sy Syms to quantify what makes his clothing outstanding and for consumers to measure those results. It’s not difficult for consumers to compare their results and pass the word – good or bad – to others. Remedying the situation when Sy falls short of the mark is simple – he makes things right or he loses business, and the stakes are pretty low. A poorly-hemmed garment probably won’t cost you years of your life or the family home.
Is our profession at all like this? Can we define (and reliably measure) what made for a successful representation in a given situation? Can these results be applied to other situations or are they too unique to be useful? When mistakes are made, can they be remedied or does everything ride on a client’s first hurried, ill-informed, easily-manipulated choice? Attempts have been made -some much better than others – to define, measure, and communicate what makes for a “good” attorney, but all are doomed to fail.
Experience is important, but counting years practiced or numbers of matters handled doesn’t measure it well. Success is important, but measuring win/loss percentages or listing notable victories is misleading. How much credit (or blame) is due to an attorney for those wins and losses? Does it even matter when the next case has different facts, a different judge, and a different jury? To very imperfectly analogize, we attribute wins and losses to a pitcher knowing that he’s not usually solely or primarily responsible for those outcomes; it’s convenient to do so and the stakes are low. Though it may be convenient to quantify legal services, the stakes are simply too great to overlook the imprecision.
We should police the accuracy of the statements attorneys make about their qualifications. Doing this, however, won’t make the choice of counsel foolproof for anyone. Our profession cannot be reliably measured; consumers make a leap of faith in choosing counsel; the most “savvy” are those who realize this and are alert to signs that their choice was a poor one.
This problem is so acute in part because ours is a system incapable of promptly and reliably correcting its mistakes. Fall for the sales pitch of an incompetent lawyer who bungles your defense and you probably live out your regrets in prison. The appellate processes which should correct those mistakes have been diminished and perverted to such a degree that the only “solution” is not to make mistakes at all. That’s impossible.
Savvy consumers want a simple guide, but we can’t give it to them. We should worry instead about creating a robust system to fix the inevitable mistakes which result from necessarily-imperfect information. If making the choice of an attorney determines one’s success or ruin, the problem isn’t that there is no Consumer Reports-style lawyer rating guide somewhere, but that too much rides on that choice.
And instead, we get a new marketing scheme / techological marvel / legal-search-website every day to guide consumers to the finest lawyers and lawyers down the path of wealth and prestige. Cheers!