Legal Spots

If you watch a lot of television (or even just a little bit), you must have seen one of the commercials run by local personal-injury law firms. Usually, a solemn-faced attorney stands in front of a conference table or desk. In a grave tone, the lawyer speaks to viewers about their rights following an accident or medical mistake, and declares that his firm can help victims get the compensation they deserve.

Some see such ads as a necessity in a fast-paced, competitive society. Others deplore them as a detriment to the legal profession, helping to bolster opinions of lawyers as ambulance chasers or shysters looking to fatten their bank accounts.

No matter the perception, those ads aren't going away.

In fact, law firms are advertising more these days. While television might remain the arena for personal-injury firms, other kinds of law firms are advertising via media ranging from mainstream newspapers and industry journals to radio and the Internet.

"As firms continue to try to build name recognition and awareness, they certainly find that they need to have advertising as a part of the marketing mix," says Paul Herrmann, CEO of Herrmann Advertising Design, a company based in Annapolis, Md., that creates advertising campaigns for a number of national and international law firms.

Briefing

For much of the 20th century, lawyers were prohibited from advertising, but a 1976 U.S. Supreme Court case, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, paved the way for lawyer advertising. It determined that commercial speech is protected by the First Amendment and may not be prohibited absolutely. In the 1977 case Bates v. State Bar of Arizona, the U.S. Supreme Court took that notion a step further, ruling that the "Commercial Speech Doctrine" extended to advertising by lawyers, and that a complete ban on the advertisement of routine legal services was unconstitutional.

A state may still prohibit misleading advertising, but commercial speech that is not misleading can be constitutionally regulated only when a substantial government interest is at stake and the regulation directly advances that interest. Lawyer advertising falls into this category; states may regulate it, but only to a degree that is considered reasonable to protect its interests.

Attorneys are required to adhere to the advertising regulations of the state in which they practice. (The American Bar Association offers suggested but unenforceable rules on the subject of lawyer advertising.)

"Florida is widely considered to be one of the strictest states," says Elizabeth Tarbert, ethics counsel for the Florida Bar's Ethics and Advertising Department. Among the Florida Bar's rules: advertisements may not contain any misrepresentations of fact or law, any information that is likely to create unjustified expectations, or any statements that describe or characterize the quality of the lawyer's services. They must disclose the city of at least one bona fide office location of the advertising attorney and contain the name of at least one lawyer responsible for the advertisement. Ads, no matter their form, must be filed with the Florida Bar for review. (There are a few exceptions to the review rule. For example, brief announcements that identify a lawyer or law firm as a contributor to a specified charity and professional cards announcing new offices do not have to be reviewed. All exceptions to the review rule still must follow the bar's advertising regulations.)

The Case for Advertising

Once lawyer advertising was deemed legal, personal-injury lawyers were the first attorneys to test the waters aggressively, using television commercials and other advertisements to reach out to potential clients. The Florida firm of Morgan & Morgan (originally Morgan, Colling & Gilbert) became something of a big fish in these waters, making a name for itself through advertising. And John Morgan, the stone-faced star of the firm's television ads, isn't the least bit ashamed of that. Quite the opposite, in fact.

In the late 1980s, while starting out as an attorney, Morgan realized that advertising was the future of the legal profession. "I decided, knowing the ridicule I was going to take, that this train was leaving the station," he says. "I saw it as clear as day."

In 1988, he started advertising with a budget of $100,000. Today, Morgan & Morgan spends $12 million a year on advertising. With offices in Fort Myers, Tampa, Orlando and Jacksonville, the firm currently boasts annual revenues of about $80 million a year in Florida.

Featuring the slogan "For the People," the firm's ads appear seemingly everywhere in the Sunshine State-on TV, radio, billboards, the Internet and in the Yellow Pages. They generate 20,000 phone calls a month to the firm's call center, although only 8 percent to 10 percent develop into cases taken on by the firm.

Morgan's advertising methods have been so successful that he's created a spin-off business to help other law firms develop effective advertising campaigns. "When I first got on [television], only a few people were doing it," says Morgan. "Now we have a generation of lawyers that has grown up watching me and other people. Younger lawyers today are not as reluctant or reticent about it."

Morgan bristles about some of the Florida Bar's regulations, especially those that prohibit firms from referring to previous successes in their advertisements. "I'm kind of a First Amendment purist," he says. "What makes our country great is freedom of speech. To try to muzzle lawyers from talking about their results, to me, is a blatant violation of the First Amendment."

However, he is quick to admit that while the rule stifles him, he also benefits from it, since his competitors can't talk about any of their major victories, either.

Though not as enthusiastic about advertising as Morgan & Morgan, Southwest Florida-based firm Goldstein, Buckley, Cechman, Rice & Purtz also uses TV commercials and billboards to inform the public about its personal-injury legal services. "Unfortunately, in the 21st century, [advertising is] a necessary evil," says managing partner J. Jeffrey Rice. "If one person does it, in order to maintain the competitive balance, others have to do it. I would have preferred that we didn't have to advertise, [but] as this community grows, we have found that in order to have our name out there in the public, the advertising helps."

Goldstein, Buckley, Cechman, Rice & Purtz spends 1 percent to 2 percent of its gross revenues on advertising. (Rice would not reveal its revenues.) Though the firm occasionally runs print or radio advertisements, it has found that television commercials "have the greatest reach and impact," says Rice.

He believes the Florida Bar's rules are on target, especially when he sees unprofessional-looking legal ads during his travels to other states. "The law is a profession; it's a high calling," he says. "The guidelines do an excellent job in requiring those who advertise to keep their ads professional and to a high quality."

Attorneys such as Rice and Morgan have experienced benefits from advertising, but others remain strongly opposed to the practice, believing that it has a negative impact on the legal profession.

"I think that the type of advertising you see from lawyers contributes to the bad image people have of lawyers," says longtime Naples attorney Tom Garlick, managing partner of Garlick, Stetler & Peeples. "It presents an image of lawyers preying on people who have been injured or who are suffering, and it leads to stirring up litigation in circumstances where it might not be in the best interests of the clients."

Though he admits that lawyer advertising shows no signs of subsiding, Garlick has never advertised and has no plans to. "A good lawyer does not have to advertise to get business," he says. "If he exercises on a daily basis the good qualities of a good lawyer, he will establish a good reputation, and business is going to come to him."

Garlick considers the Florida Bar's rules too liberal and hopes they will be reexamined, especially in light of a Fort Lauderdale law firm's attempt to use an image of a pit bull in a television commercial. The Florida Supreme Court unanimously agreed last year that the image and the firm's phone number, PIT-BULL, misled the public and demeaned the legal profession, putting an end to the commercial. "Next we'll have a wolf, shark, barracuda and God knows what else," says Garlick.

"If we have advertisements that mislead the public, that don't have lawyers portrayed as people who give quality service, it hurts the entire profession," says Bob Diotalevi, program coordinator for legal studies at Florida Gulf Coast University. "We want to make sure we maintain the integrity of the bar. How do we do that? By having fair, nonmisleading ads that give the public the information they need to make informed decisions."

Appeal of Advertising

Though it may not be obvious to the average Joe, personal-injury lawyers aren't the only attorneys who advertise. According to Herrmann, in the late 1980s, when some corporate law firms started losing business in the faltering national economy, they began advertising to create name awareness and lure clients. Since then, he has seen an increase in the number of firms that advertise as each year passes.

The Florida Bar has also seen a growing interest in advertising among all its members, not just those who handle personal-injury cases. In 2005, the bar received almost 3,000 new ads for review. "We have seen an increase in filing over the past 15 years since the review program was enacted," says Tarbert. "I think [advertising] will continue to increase, if only because we get more bar members every year. It looks like it's something that's here to stay, and the bar, of course, will continue to regulate it."