The Ostrich-Like Behavior of Lawyers
Independent Heaven

Bikini Clad Paris Hilton Endorses New Law Firm Billing Model

Lawyers and law firms often forget exactly how limited they are by ethical rules about advertising.  These limitations keep us all in a small (although not so neat) little box. 

How small is the box which regulates lawyer advertising? There can be no better contrast between business advertising and legal business advertising than this Paris Hilton commercial for the Hardee's / Carl Jr hamburger chain [a MUST see since it sets the bar for mixing sex and message in advertising]. 

Now, after watching the video, watch it again and imagine (or fantasize if you wish) that Paris was selling legal services.  Not an injury lawywer advertisement. Imagine a clever ad about alternative billing.  Imagine the ad is so novel it gets played nationally on the news and receives hundreds of thousands of hits on the world wide web each day.

While lawyers struggle with issues such as client endorsements and blogging advertising policies, other US businesses actively mix sex, luxury vehicles, a lot of water, a hose, major tongue action and a barely clothed Paris Hilton to get the consumer's attention so they can broadcast their barbecue burger message.

After seeing the video, I am struck that the lawyer advertising box is indeed as tiny as Paris' bikini. I admit that I am indeed jealous of other businesses which have almost limitless ways to get out their message. 

Would I want Paris to market my message of "changing the way law is practiced" ...  My immediate thought is 'hell yes' (although I admit that I might be somewhat dazed from Paris' burger commercial ... her video talents are legendary).   Instead of struggling to get my message of change and innovation heard, the message would drop like a atom bomb.  And I thought blogs were great.

Advertising has always been a cornerstone of American business.  Good advertisement added to a quality product delivers market (and yes financial) success.  I think I heard it called capitalism once; capitalism in the true sense of what was originally intended by Adam Smith and re-introduced by Adam Smith, Esquire.  I am not talking about today's capitalism which I think we all realize is a function of momentum, money and power at this point, far more than talent or value. 

When marketing meets muscle, entire service markets are changed and even created. You don't see that in the law, probably because many think it would be prohibited by ethical rules concerning lawyer advertising. 

Ask yourself.  Where do legal consumer turn for information when they hire a lawyer?  Even with today's Internet, the number one complaint of prospective clients is that they don't know how to hire a lawyer.  Of course, the rich know who they are and which ones are most connected. What about he average business person, the middle class Joe or the upwardly mobile Jane? Don't they deserve information and alternatives?

It makes me wonder, if Paris Hilton endorsed a law firm by labeling a firms alternative billing model "That's Cool!" while wearing nothing but a skimpy bikini, would the public really be in jeopardy of being deceived?  It is an extreme example but one that makes you think. Don't limitations on advertising leave most legal consumers completely in the dark, or worse, left to the back page of the yellow book? What's worse, Paris in a bikini pushing value billing or leaving clients to guess about law firms (loaded question).  How about, can't we loosen up the advertising rules for non-personal injury/employment advertising?

Handcuffing lawyers from distinguishing themselves from their competition is simply protecting the status quo.  It is time to overhaul the lawyer advertising rules with a system that protects consumers from misrepresentation, but allows law firms to freely and creatively inform and entice consumers with alternatives to the traditional law firm.

I agree there is a professionalism difference here so don't leave a comment lawyers are different than burgers.  Da.  If that's your comment, you miss the point completely.  The question is not we are a higher grade product than a Hardee's burger with spicy barbecue sauce dripping down the sides (Hmm, maybe that would be a good debate after all).  The question is are we killing innovation on non-contingency fee business models by severely limiting advertisement by lawyers. The question is whether we are so busy trying convincing ourselves that advertising is unprofessional, we have forgotten to integrate professionalism in our practices where it counts. 

My god, have we really convinced ourselves that we are saving the profession by killing the free speech of lawyers about the profession itself.  And if lawyers don't say it in advertisements, where do they say it to the broader public?  Church?

And what the hell are we protecting exactly.  The answer supposedly is that we are protecting the institution of law itself.  But those institutions are not focused on upholding lady justice in today's legal market (oh, can you imagine Paris as Lady Justice?).  The institution is an army powerful machines of hourly billing focused on greed and ego (I can almost see Paris "lady" Justice battling hourly billing killing machines ...).

Paris I am too hungry for a Spicy Barbecue Burger to write any more  ....[GAL leaves the blogosphere trying to find his car keys and a late night window @ Hardee's ...]



The lack of creativity in the legal market is best reflected in the attorney section of the Yellow Pages. Attorney yellow page ads are almost all the same. No creativity. No differentiation. No alternatives. Just like the real world legal market. What came first, the chicken or the egg?


I would use Paris in my commerical. Whatever happened to me (and I would no doubt be disbarred) would be OK by me. It would be worth it. Another view, another voice and an alternative message would be delivered like the 17" bass in the "I love Paris" Cole Porter mix, also found on the Hardee's commercial web site.

Darkness Ruled the Land

Let's face the cold hard undeniable facts. We live in a system designed to keep legal consumers in the dark. Gasp! Can it be true?

Adam Smith Lives

Why do we discourage a market economy in law. Isn't capitalism supposed to work across all markets? At least with capitalism driving the legal market, diversity and innovation thrive. The consumer with legal options always wins in the end.

Bar Fly

Bar Associations should be concerned about misrepresentations in lawyer ads, not creativity, novelty and innovation. Other businesses regularly compare their products and services (including quality) with their major competitors. Advertising tells consumers about their alternatives. Smart consumers take it from there and do their homework just like in other markets. Reputations become more than law school resumes, having your name in the firm name and prestigious (ie high) billing rates. Jerks and bottom-feeders still exist. But they will not flourish in a true market economy.

Advertisement Ethics

If you are wondering where the advertising lines are in your state, check out this ABA web page which breaks down advertising rules by state. For another interesting page, take a look at Overlawyered advertising page where they take jabs at lawyers using advertisements to start lawsuits. The "let's sue em" advertisements are often used to support the advertising limitation arguments. I believe we have thrown the baby out with the bath water (or at least throw out the Paris with the hose water), even accepting that the injury advertisements bring more negative consequences than positive ones.

David Giacalone

GAL and Bar Fly make some great points. Long before my ethicalEsq persona was created, I concluded -- working as an FTC attorney monitoring anticompetitive conduct by professionals -- that limitations on lawyer advertising have far more to do with stifling competition, and upholding a "dignity" that would warrant bloated self-images and higher prices, than with protecting consumers. It is worrisome that so many bar groups are now working to once again limit lawyer advertising (often under the guise of tort reform). All lawyers who care about consumers, competition, free speech, and innovation -- not just those who now do personal injury advertising -- need to let their bar associations and bar regulators know that further limiting lawyer advertising is anticonsumer.

Here are some recent examples of the trend toward excessive limitations on lawyer ads:

The new president of the NYSBA wants to limit lawyer advertising "to the fullest extent permitted, within the limitations of the First Amendment," along the lines of a program discussed in this posting -$3808 .

South Carolina wants to ban lawyer nicknames -- .

Indiana is disciplining lawyers for silly puffery that no consumer could take seriously - .

I've always believed that personal injury lawyers could afford tv ads because they are -- despite their protests -- making considerably more per hour than other lawyers (much more than risk alone warrants). Advertising in mass markets may not be an option for many law firms, therefore. However, the ability of the internet to target potential clients with reasonably-priced ads should permit many more lawyers to begin serious advertising campaigns.

Thanks for the soapbox, GAL.

p.s. to AdamSmithEsq: No, capitalism does not work in every market, although real competition always does promote consumer welfare through lower prices and innovation. The inability of consumers to adequately judge the ability of a lawyer in advance, or to gauge the adequacy of the services after received, means there is need for lawyer regulation beyond market forces. Despite that regulation -- or, even more so, because of it -- competition must be encouraged whenever possible.

p.p.s For advertising to be beneficial, it needs to give useful, nondeceptive information. Merely creating brand identity, so that you can charge more, is not increasing competition or helping consumers. See "Brand Lex" at .


While I believe that Paris Hilton is more spectacle than sexpot, I understand your point. Why not open the 'toolbox' to lawyers and allow them the same freedom in advertising as everyone else?

My take on that is as a lawyer, you are not only reflecting your own practice, you are also reflecting on the legal/justice system. Of course, the legal system is worth protecting, but is that something that should be legislated?

The past 50 years have seen the commercialization of America in nearly every aspect of our life. Shouldn't lawyers be able to take advantage of that too?

Those are tough questions and worthy of debate. I'm not certain there's a 'right or wrong' to the answers as much as how they reflect your world views.

There is a certain wing of the Republican Party that feels that market forces solve every problem that can be faced. Well, no. I'm about as big a proponent for capitalism that's come down the pike, but there *do* have to be rules. Look what happened at Enron, Tyco, Waste Management... when they took off the personal responsibility rules. Do you know that those 3 companies stole the equivalent of $300,000 for every lawyer in this country?? Holy cow.

I think 'some' rules and guidelines are a good thing. How much for lawyers? Why can't we do what other people are doing?

My answer to that lies on what we are protecting. Is the legal system worth protecting? I think we can say unqualified 'Yes it is'. Does the prohibition on advertising help protect the legal image? Is there anything *else* we could do to protect the legal image?

I think there's a lot more that we could do to protect the legal system, but who out there is doing that? Very few. I think advertising is just the tip of the iceberg when it comes to the problems the legal profession is currently facing.

I'm a member of trial lawyers associations at the state, national and regional levels. In my state, out of 12,000 lawyers in the state, only 1,200 are members of the state TLA. Of those only about 350 go to the State Convention. Only about 5-10 go to the Conventions at both the state and national level. About 3 go to the state, regional and national Convention.

When our state TLA has work that can be done, there is a core group of 30-40 lawyers in the state that help out. That's it.

So I think that the profession and the legal system is worth valuing, whether that is by being 'dignified' or just worthy of praise / coolness factor. I don't think that the advertising prohibitions are the most helpful, but think our malaise is much deeper than that.

In so much that the legal system codifies transactions and resolves disputes for our country, isn't a dissatisfaction for the legal system a dissatisfaction for what our country has become, or where it is heading?

I agree with you that the professionalism belongs in the work done for your clients and not in shackled advertising. How do you get more people involved? I think one piece at a time. Blogs (for those who know of them) are helpful. I'm going to chair the Public Education Committee for our state TLA next year.

One of my goals will be to take it to the streets and let people know the hard work that we're doing out there and the problems that the public faces if they ever get hurt.

As a personal injury lawyer, I can tell you how much the 'sleazy ads' have hurt us. They are very profitable to the people who run the ads, but poison the jury pool for the trial lawyers that end up in the courtroom. I don't feel that they do a service to the legal profession. David Giacalone mentioned that in South Carolina they are banning nicknames. We have two attorneys that run ads 'The Strong Arm' and the 'The Heavy Hitter' that do a lot to create a negative image of lawyers.

So as someone who has seen the impact of these ads firsthand, I don't mind strictures on them.

I find it interesting though that you wanted to open up all the restrictions, exceptin' of course injury ads. And if the argument is that we are qualitatively no different than a burger or a shiny fast car, why not injury ads too? Are commercial clients that much more sophisticated than end consumers? Just because we deal with the public, why does that make us different than any other branch of the legal profession? Why don't your arguments for alternative billing hold for injury lawyers?

You raise a lot of interesting questions. Ultimately, I don't know the answers to fixing the legal profession and the best direction to take it. I just do the best job I can, let my work reflect my values and try to get other people on the bandwagon.








More Swimsuits

I wasn't aware that there were specific advertising rules that barred lawyers from certain types of commercials. Logically, it makes sense not to use Paris Hilton or a sex campaign to sell an attorney's services. I, for one, would not trust an attorney who used a girl in a bikini to sell his legal services. However, if there is such a law, I agree that lawyers should be allowed to use their own discretion in advertising.

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