There is the notion, held by some lawyers and blawgers, that the new advertising ethics code promulgated recently by the New York Bar Association tend to “make us look like idiots.” These rules are anachronistic, taking lawyers back to the pre-Bates rules, and merely codify a lot of what good lawyers and knowledgeable pundits have understood and lived by for a long time. The only startling thing (to me, anyway) about the new rules was the use of the word moniker, which is slang and colloquial, in this rigid and lawyerly document. “What’s his moniker?” “Harry the hatchet.”
By sheer dint of intelligence, skill, and a touch of residual white shoe thinking, they’ve progressed all the way to the beginning of the 20th century. These rules have been designed ostensibly to protect the consumer of legal services. That’s what they want you to think. They have actually been designed to protect the myths of legal professional superiority.
The new rules codify to a fare-thee-well what smart lawyers have understood and lived by all along. The rules are as meticulous and lawyerly as a rich man’s will, which is too bad. Why? Because advertising – in fact, all marketing -- is an art form, not slavishly subject to any inviolate rules. What’s next? Codifying the rules for landscape painting?
The rules do little to help consumers of legal services better understand the law. They codify the obvious to the point of nit-picking. Furthermore, although the new rules give some recognition to the new media, they seem anachronistic, and don’t fully address the full ramifications of 21st century media..
Had lawyers’ behavior gotten so outrageous as to warrant promulgating rules in the first place? I know, I know. Rules have to be written so that everybody is on the same page. But it’s still a page in the Bar Association bible, not the consumers’. The rules are written as a context to punish the transgressors, which most lawyers aren’t.
But people are people. The transgressors will transgress no matter how stringent the rules, simply because the posture of superiority bred into lawyers opens the door to the disease of hubris. Hubris, of course, gives license to greed.
Legal ethics, like quality, are built into the mentality of good lawyers, who recognize that what we call unethical is simply bad business. Lawyers’ stock in trade is not merely the knowledge of the law and legal procedures alone. It’s an integrity that gives credence to legal advice. Ethical dilemmas are really business decisions. No repeat business (and probably jail) for the lawyer who lies, or cheats or steals. It’s a dumb thing to do, they rarely get away with it, and all the codification isn’t going to stop them. For the honest lawyer, the rules hamper the opportunity to be thoughtful, honest, and original marketers – all of which are imperative in this new competitive environment.
That doesn’t mean there shouldn’t be some structure to remind lawyers what business they’re in , and it’s not merely serving the profession. It’s serving the public, and restrictions that diminish the opportunity to inform the public don’t protect the consumer. I’ve read and reread the rules. It’s a lot of rules that simply say don’t fool the public, don’t kid the public, don’t make promises you can’t keep, don’t knock the other guy, like they do in product advertising, because it diminishes -- not enhances -- you, and don’t cheat.
In case nobody’s noticed, Bates gave us competition. It’s now ubiquitous. What’s needed now is not arbitrary and rigid restrictions on competition – that helps no one. These almost 30 years since Bates have shown that competition helps the consumer of legal services, and helps – not hurts – the profession. What lawyers (and accountants) fail to understand is that good marketing is an art form. When you can’t say, “We do better briefs,” or “Our silver tongued devils are more silver tongued than the other guys”, you’d better be a lot smarter, and more artful to demonstrate your capabilities to the consumer of legal services.
With notable exceptions, there’s some pretty bad lawyer advertising around, if only because few ad people understand how lawyer advertising and marketing differs from product advertising, and few lawyers understand anything at all about advertising. Lawyer advertising is a new discipline. While it dates back to Bates (1977), it took about five or more years after that to get the hang of it.
If you manufacture lollipops, you can say our lollipops are better than their lollipops. But you can’t say we’re better lawyers than the other guys – not because of any codified rule of ethics, but because you can’t prove it, and you wind up looking silly. You can say, for example, “The best part of our litigation practice is our research – and the lawyers who know how to use it,” and that demonstrates an important benefit to prospective litigants.
Is this theory? No. Ask me – I’ve done it.
The fact of the matter is that if you can codify any aspect of marketing, then it’s old hat. It means that your competitor has done it. You’ve got to come up with something better, if you want to compete successfully. Put that in your code.
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