"Injured? We can help. Know Your Legal Rights. FREE telephone interview. FREE office visit. FREE brochures about personal injury cases. Our Policy: Reasonable fees - no deposit required. We never represent insurance companies, only injured people - we're on your side." Typical lawyer ad these days? Yes. Does it generate ethical concerns -either large or small? Not in and of itself. A sense of unease? Yes. Why? Let's think about it.

Commercialism
Much criticism of lawyer advertising is misplaced. While ostensibly concerned with ethics, it may actually serve other agendas. Attacks on a lawyer's advertising for personal injury cases, for example, are often attempts to create a predisposition against plaintiffs' claims in the minds of prospective jurors. There may also be an element of self-righteousness involved. The attacks imply that lawyers who advertise are not good enough to attract clients through the more traditional ways, reputation and wordof-mouth. Criticism of lawyer advertising may also reflect class or social differences (if that term can be used to describe differences in attitude between members of the established bar and neophytes).

Perhaps the best way to express a principled reservation about lawyer advertising is to say that commercialism might have a corrosive effect on professionalism. This way of stating the problem, properly understood, does not rest on the outdated image of a legal profession unsullied by the forces of the market. (The substantial overhead necessary to run a modern law office, including rent for space, staff, equipment, library, furniture, and furnishings should be more than sufficient to dispel that image.) Rather, this way of stating the problem grounds it in the inherent tension between ethics and self-interest. The primary ethical norm relating to clients is that the client's interests are superior to the lawyer's. The lawyer's interests are subordinated, but not lost. The creative resolution of the tension honors the client's interests without losing the lawyer's.

This tension was largely missed by Justice Blackmun in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), a decision which opened the door to lawyer advertising under the First Amendment's protection of "commercial speech." Blackmun viewed lawyer advertising as a way for lawyers to provide information to potential clients: The interests of the client and lawyer are essentially compatible rather than as competing; potential clients need the very information lawyers want to put into their advertising. On the other hand, Justice O'Connor, dissenting in another advertising case, Shapero v. Kentucky Bar Assn, 486 U.S. 466, 488-89 (1988), viewed restraints on advertising in terms of the struggle against self-interest: "One distinguishing feature of any profession, unlike other occupations that may be equally respectable, is that membership entails an ethical obligation to temper one's selfish pursuit of economic success by adhering to standards of conduct that could not be enforced either by legal fiat or thru the discipline of the market."

It might seem slightly paradoxical that standards of conduct that cannot be enforced legally or through market forces may nevertheless have force. Ethical norms act as overarching principles that direct and inform the decisionmaking process. They help to shape character but do not create it. An ethical norm is not an end in itself.

Character
In the practice of law, ethics is ultimately a matter of character. Much of what lawyers do is not understood by clients, nor is it amenable to any kind of precise measurement. Accountability is often fluid. Yes, there is some "bottom line" reckoning in terms of winning and losing. But in the overall movement (or non-movement) of a matter to resolution, there is considerable flexibility.

What should a client know before hiring a lawyer? Clients should know the answers to several questions not even hinted at in lawyer advertising: "This is very important to me. Will you treat it as if it were important to you? Do you have the time to give my case the attention it deserves? How will you balance that time commitment with other important cases or matters? How do you decide which files to work on before others? What happens to my case when something else is more important or pressing? Do you work fast or slowly? Are you thorough? Are you vigilant? Do you know when you don't know? Do you prefer to resolve problems through aggression or cooperation? Do other lawyers refer this type of matter to you? If I have questions or concerns, will you return my phone calls? If nothing has been done, will you tell me the truth? Will you be honest and fair with the bill? Finally, can I trust your answers to these questions?" Wouldn't the client be better off knowing the answers to these questions instead of being told, "I'm on your side?"

Advertising for legal services is inherently flawed because it is based on telling rather than showing. In fact, most attempts to show (through comparisons or client testimonials) would probably run into problems with the disciplinary board. (Comment 1 of Rule 7.1 of the American Bar Association's Model Rules of Professional Conduct says: "The prohibition ...of statements that may create 'unjustified expectations' would ordinarily preclude advertising about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, and advertisements containing client endorsements.") Even the telling is fraught with difficulties. Most lawyers' services resist a simple, objective description in terms of price, experience, and nature. In any event, what is more important than description is the character of the person described.

Role of Rules
The culture of lawyers, like that of society generally, works better when the restraints on self-interest are self-imposed. When internal restraints on a lawyer are absent or eroding because parents, teachers, other lawyers, and other mentors failed to nurture them, or now fail to reaffirm them, external (and less effective) restraints become necessary. Rules then attempt to define what was formerly a matter of good judgment and common sense.\

Restrictions on advertising serve as one of the external restraints on a lawyer's self-interest. The restrictions are limited in scope, focusing mostly on accuracy. The most important rules, those concerned with dignity, are too hard to write. The restraints supporting dignity must be internal. For some reason, bankers, doctors, and hospitals find it easier to advertise professional services without loss of dignity. Why is loss of dignity more of a problem for lawyers who advertise than for other professionals? The lawyer's ad cited earlier, with its emphasis on FREE this and FREE that, has more in common with advertising for autos and carpets than with the advertising of other professionals.

But we shouldn't overreact to what is a symptom, not the disease itself. Condemning excesses is easy; so is condemning fault in others. But such condemnation will do little when the real problem lies closer to home. Solzhenitsyn, and many others, remind us that the struggle between good and evil is not a struggle between nations, or between religious creeds, or between political parties, or between economic classes. The struggle between good and evil is waged in every heart.

The Internal Struggle
The struggle for professionalism is not simply a matter of ethical lawyers and unethical lawyers. It is a struggle between good and evil that is personal to every lawyer. Some lawyers have clearly given in to the dark side; it will take more than a little counseling to bring them back. For them, the bar needs measures sterner than a sermon. For the rest who continue to struggle against the dark side, there is no respite. One can be both a genius and a fool on the same case. One can win and malpractice at the same time. One can act honorably and lie within the same negotiation. Therefore, pray, examine, confess, and be vigilant.

We come back to the tension curbing the pursuit of self-interest by placing the clients' interests ahead of the lawyer's. It's not your case, it's their case. Listen. Think. Meditate. How can I get to where they want to go without losing them, or myself (or even the other side), in the process?

In advertising, this would mean the "soft sell," not the "hard sell." Cut out the "FREE" stuff and the other gimmicks. Tell prospective clients who you are, what you do, how you practice, and what you believe in. Then, try living up to those words.