ABA Needs More than PR to Polish Tarnished Legal Image

" He’s not an ambulance chaser. He gets there before the ambulance."

I just don’t find the humor in these types of jokes- not because I’ve heard them so many times before but because they represent such degradation of the profession.

But it was the seriousness of this joke that the United State Supreme Court recently faced in considering the constitutionality of a Florida rule aimed at just such unethical behavior.

In Florida Bar v. Went For It, Inc., No. 94-226 (decided June 21), the Court upheld the constitutionality of a rule prohibiting lawyers from direct-mail solicitation of personal injury victims or their relatives for 30 days from the date of an accident or disaster.

Members of the bench and bar lined up on both sides of the issue. Some small law firms opposed the rule, hiding behind Shapero V. Kentucky Bar Association, 468 U.S. 466, 472 (1988), the case that established lawyer advertising as commercial speech and accorded it a measure of First Amendment protection. Publicly these same lawyers said it violated their First Amendment right to free speech, while privately thinking a good portion of their livelihood depended upon such blatant solicitation.

But members of bar associations and some large law firms generally supported such a regulation and felt this undignified behavior should be stopped because of its impact on the public’s perception of the professional.

The truth is the rule didn’t go far enough. Why 30 days? Why not 90 days? A year?

The emotional healing from a tragedy is, perhaps. never really complete. And I have seen too many over- zealous lawyers send advertising and solicitation material to distraught families, not just promoting their firms, but even substantive information on the status of government investigation into the matter, such as airline crashes.

For instance, I heard one anecdotal account of a firm offering to fly a family overseas to attend a National Transportation Safety Board Hearing---at the firm’s expense! I myself have been compelled to write certain lawyers a letter informing them of my firm’s being retained by clients after a mass disaster in order to have their names removed from the lawyers mailing list.

But at the same time, I contend the Florida rule is underinclusive. If plaintiffs’ lawyers are prohibited from contacting victims and their families, why are insurance companies and opposing defense counsel likewise not prevented from emotionally pressuring these same people ( and now without benefit of counsel) in Florida?

And as other states begin enacting rules based upon Florida’s prototype, their crafters should take note of concerns expressed by Justice Anthony Kennedy, writing on behalf of the dissent in the Florida case. He, as well as Justice Sandra Day O’Connor writing for the majority, acknowledged that investigators, insurance adjusters and defense counsel may also be clamoring for victims’ attentions. In all fairness, any other states’ enactments should similarly impact these people’s actions.

The real issue, though, is that the Florida Supreme Court felt the need to institute the state bar’s proposal creating a 30-day blackout period for lawyers. The late Chief Justice Warren Burger just a year ago criticized the "hucksters" of the profession. Truly, they are an embarrassment to us all.

The Supreme Court seems to have taken up Burger’s cudgel and has tried to instill values through enforcing behavior. But it just won’t work to achieve the ends it really wants.

What will it take to turn around a tiresome tarnished image of lawyers? Reformist are trying to change the civil justice system under the guise of frivolous lawsuits. These politicians, many of whom are lawyers themselves, are unfairly strengthening a mistaken notion through their unsubstantiated statements.

The legal system generally represents a time when a person seeks advice after suffering a traumatic situation. Someone already in the thick of a personal crisis is not likely to view the problem in a positive light, and the attorney often becomes the scapegoat when complications arise.

Two years ago, the American Bar Association committed $750,000 to an ambitious public relations campaign. But changing society’s schizophrenic attitude cannot be accomplished in a 30 second televison commercial sandwiched between advertisements for beer and peanut butter. It cannot be rectified by an organization spending hoards of money in a hit-and-miss fashion. Nor can it be changed through legislating a 30 day waiting period.

Every individual must strive to promote a legal system that works. Each attorney must try to become a living example of just what the profession stands for- principles of right and justice and reason.

If every lawyer is more diligent in the enforcement of legal ethics and more dignified in his or her legal encounters, attorneys can stand with their heads high. The image will take care of itself, and the need for legislating ethical behavior will dissipate.

So the next time you’re at a cocktail party and someone comes up to you and says, " Did you hear the one about, ‘What’s 10,000 lawyers at the bottom of the ocean? A start.’p"

Don’t be politely silent. Be smart. Don’t laugh, but instead speak up for the good the profession represents, even at the risk of appearing to be thin-skinned.

Remember, it’s popular to poke fun at lawyers— until you need one.