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Lawyers and advertising

Theodore Dalrymple, the doctor and essayist, is always well worth reading and this item about Mrs Thatcher (oh no not again! ed) is particularly insightful, and fair, if a touch arch in tone. He points out her flaws on domestic policy, such as an obsession with certain targets as well as the strengths. But his essay is not without its own flaws. Here is a key paragraph, which starts well, but ends with a bum note:

“Her error in part was to have failed to recognize the change in the character of the British people. She imagined them as they were in pre-war Grantham, the small Lincolnshire town where she was born: honest, prudent, modest, striving, thrifty, virtuous, duty-bound and patriotic. The intervening years, however, had changed their character; they, or many of them, had become very nearly the opposite of all those things. And she increased their dishonesty further by a small reform that corrupted the legal profession and the population alike: she permitted lawyers to advertise, which they had never been permitted to do before. The law now stifles everything from thought and speech to law enforcement and economic enterprise.”

It seems nanny-statist to imagine that solicitors should not be allowed to advertise their services to the public. To be blunt, he’s arguing for censorship of a profession in terms of its ability to put forward its services. An absurdity. It is not much of a stretch to imagine that any supposedly important profession/trade should also be banned from the grubby business of making itself known to the public, lest the weak-minded public be led astray into bad habits. This is the sort of paternalistic approach that Mrs T. rightly pushed back against. If it encourages the odd frivolous lawsuit, well, freedom has its costs.

Solicitors soliciting for business. Fancy that.

 

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25 comments to Lawyers and advertising

  • Mr Ed

    You appear to fail to notice the absurdity of solicitors and their legal privileges. If they want exclusive rights, then they have no locus to complain about regulation and restriction on advertising. In any event, the rules on costs and audience should be reformed.

    Fancy a world where anyone you want may prepare your case and represent you in Court, or hire a barrister for you? Many solicitors would probably not.*

    He who deals with Sauron does so on Sauron’s terms.

    * There is one, the Employment Tribunals system, leqving aside the woder question of why one might have specialised Labour courts,

  • You appear to fail to notice the absurdity of solicitors and their legal privileges.

    And you base that supposition on what? I rather doubt he has “failed to notice” that but rather would see it as an unrelated issue.

  • Paul Marks

    People should indeed be allowed to advertise representation in court.

    As long as anyone can appear in court – anyone that the people takeing the action want to represent them.

    As for sueing.

    The important thing is that it not become a sport (or plague).

    If you want to sue someone (and really mess them up), you should be prepared to pay if you lose.

    After all (if there was no guild monopoly) the legal costs of both sides would be a lot less.

    By the way…..

    There should be nothing to prevent “The Bar” (or whatever) placeing advertisments saying…..

    “Do not go to unwqualified people, going to them will mean you will lose in court”.

  • Johnathan Pearce (London)

    “If they want exclusive rights, then they have no locus to complain about regulation and restriction on advertising. In any event, the rules on costs and audience should be reformed.”

    As Perry said, it is unrelated to the point I am making, which is about the general absurdity of banning a profession from advertising its services. The fact that solicitors might have a certain type of privilege does not weaken the issue. I am all for anyone having the right to represent others in court, so your point doesn’t work. If a person who has the qualification and status of a solicitor wants to advertise a service, I fail to see why you would object. As for your point about “the rules on costs and audience should be reformed”, what exactly do you mean?

  • Sam Duncan

    Indeed. I could never get my dad – a solicitor himself – to understand why he should be allowed, not forced, to advertise.

    Mind you, having said that, as the son of a solicitor, I’d always trust a small firm over one that plasters itself across the telly (and has a list of partners as long as your arm at the foot of its letterhead). My dad’s argument was always that his professional relationships were as highly personal as those between a doctor and patient, and that “buying off the shelf” from someone you’d seen advertised would never be as satisfactory as someone you’d been recommended by word of mouth or knew already.

    But then again, that’s rather the point, isn’t it? It’s the customer/client’s choice. If someone does want an impersonal service from a gigantic “limited liability partnership” (whatever the hell that’s supposed to mean), it’s their lookout, nobody else’s. Caveat emptor, as the lawyers would say themselves.

  • Laird

    As a (former) attorney myself (haven’t practiced in years and have no intention of doing so again), I agree with Johnathan’s point. I lived through the parallel change here in the US (we used to have the same no-advertising rule) and I could never understand the rationale behind the prohibition. Not that I ever advertised (my practice was relationship-oriented), but those firms which focus on one-off litigation (such as personal injury cases) need to find clients somehow, and advertising is an entirely legitimate means of doing so. For myself, if I ever had the need for a personal injury lawyer I wouldn’t go to one of those firms which advertise heavily, but rather would seek a recommendation from lawyers I know, but not everyone is in that position.

  • Laird

    As a (former) attorney myself (haven’t practiced in years and have no intention of doing so again), I agree with Johnathan’s point. I lived through the parallel change here in the US (we used to have the same no-advertising rule) and I could never understand the rationale behind the prohibition. Not that I ever advertised (my practice was relationship-oriented), but those firms which focus on one-off litigation (such as personal injury cases) need to find clients somehow, and advertising is an entirely legitimate means of doing so. For myself, if I ever had the need for a personal injury lawyer I wouldn’t go to one of those firms which advertise heavily, but rather would seek a recommendation from lawyers I know, but not everyone is in that position.

  • RRS

    The law now stifles everything from thought and speech to law enforcement and economic enterprise.”

    – Dalrymple

    That has little, if anything, to do with the advertising of professional services. It has everything to do with legislators in parliaments, statehouses and Congress.

    It has to do with the characteristics of citizenry that desire a judicial system through which to attain objectives rather than adjudicate disputes or enforce the performance of obligations; including those obligations negative in character.

    The characteristics of the citizenry have changed and their demands on the legal system and on those providing its services have changed as well, resulting in a change in the characteristics of the responders.

  • RRS

    Incidentally, Dalrymple misstates the case as:

    And she increased their dishonesty further by a small reform that corrupted the legal profession and the population alike:

    “She” did not increase the dishonesty of the citizenry. The transformation of the citizenries in their use of the legal systems has been underway since early in the 20th century, at least. A certain “commodification” occurs when legal systems are adapted to attain objectives, and it is not surprising that advertising fits that commodification.

  • jdgalt

    Most legislators are lawyers, and they make the law gratuitously complicated just to create work for themselves. Then they limit competition with themselves. The only comparable group I can think of in history were the clergy in the Middle Ages who insisted Bibles be published only in Latin, lest we realize we could do without them.

    I say, if we must have attorneys at all, socialize them and have the state provide (equally funded) lawyers to both sides in every case. It’s the only way to be fair.

  • Mr Ed

    To Perry and Jonathan. I was presumptious enough to assume that Jonathan had first asked himself ‘Where does this start from?’, and if he had, then he might have considered, if he had a sufficiently enquiring mind, ‘how come there were regulations covering the right of this profession to advertise?’.

    The answer, as Paul Marks points out, is that it is a guild, which had numerous rules and also privileges. It is not ‘de-regulation’ to permit solicitors to advertise, so much as the refinement of privlieges. It is not unrelated to Jonathan’s point, it is, more properly, that Jonathan is, so far, unable to conceive of the inter-connectedness of the issues.

  • Johnathan Pearce

    Ed, I used to work as a journalist covering, among other matters, crime and the courts system. My brother is a litigator. I am opposed to restrictive practices that have the blessing of the State. So it is fair to say that I know the score rather well. So spare me the “tone”.

    I know perfectly well that there are “guild” aspects to the legal profession, and there should not be, just as, other professions, such as medicine, are also guilds (and should not be). Does that mean I support a ban on doctors advertising their services? No. It means changing the guild structure and loosening up the system. If the legal profession is able to operate as it is, I don’t see why it cannot tout for business. You are supposing that consumers don’t have the smarts to work out the good and the bad.

    Advertising is one of the ways that people get to know who a tradesman/professional is. And I cannot help feel that one of the reasons why people dislike ads is nothing more than a snobby dislike of trade. I have noticed this failing in Dalrymple before, which is why I am slightly surprised he writes for a blog that is supposed to uphold classical liberalism.

  • Mr Ed

    Jonathan,

    I apologise if my tone was inappropriate, I work in litigation, and I am rather used to putting my case strong and high, and I have seen many bad solicitors, and known people let down by them, I do not see that their being permitted to advertise is relevant to the cause of liberty, it is just that the ‘burden’ of being in a regulated profession has been reduced. Does it benefit the public? Perhaps, but word of mouth might be a surer guide to a good lawyer.

    In respect of Dr Dalrymple, I would agree that he seems to have a sniffy disdain for trade, which may be part of the British ‘upper middle class’ approach, perhaps amongst those who owe their financial rewards and status in part to the State.

    I would say that he is wrong to suggest that advertising led to the corruption of the legal profession or the population. In part, Mrs Thatcher’s own Occupiers’ Liability Act 1984 expanded the ‘duty of care’ to cover, in some instances, a trespasser. This was acknowledged at the time as imposing a gross burden on a landowner, doing damage to the Common Law. If Mrs Thatcher had been as principled as one might have hoped, this law would not have been implemented, and the ‘claims’ culture might not have grown so quickly. The Doctor’s diagnosis is wrong, the adverts are a symptom, not a cause.

  • Mr Ecks

    It is not adverts but “no win-no fee” that is the rot. Before that you never saw or heard of the “Have you had an accident lately?” creeps.

    Lower legal fees for the poorer is not a bad idea but no risk is an invite to fucking chancers everywhere.And that establishes precidents that do the damage.

  • Johnathan Pearce

    Mr Ed, no worries. I get wound up as well.

    For what it is worth, I agree with a different critique of Maggie: she was great at taking on certain vested interests, except those of the middle class. Exhibit A: the planning system. A lot of Tory leafy suburbs benefit from the artificial scarcity created by land-use planning and zoning, which drives up the existing prices of homes to the detriment of wannabe homeowners. Hence, the latter get into heavy mortgage debt, with all the tragic effects. Now to be fair, Mrs T had a nicely Victorian view on debt, but she had a blind spot in not seeing the dangers of leverage when unleashed into a scarce property market. Very few serious politicians have ever really grasped this issue. Of course this is just as much a problem for the left as it is the right: a socialist who wants to build council houses has to still confront the planning system and its NIMBY tendencies.

    I like Dalrymple most of the time but I also find something about his approach off-putting. Everything is always going to hell. Actually, it isn’t.

  • RAB

    It isn’t the advertising that’s the problem, it’s “no win no fee” that’s the problem. If you decide to go to Law and sue someone, you should be prepared to lose and pay the costs. If you are in a no jeopardy position you have nothing to lose in taking a punt do you? This encourages frivolous claims like the Policewoman claiming damages from the garage owner for tripping up while doing her job.

  • RAB

    Oops. Sorry Mr Ecks, you already said what I just said. I really should read all the comments befor I post shouldn’t I?

  • The point being missed here is that the galloping nanny-statism we see is in reality little more than rent seeking on the part of (some) lawyers. There’s really no problem in allowing lawyers to advertise. The problem is in giving them far too many opportunities to practice.

    For every “Bulldog” Smith, Fighting for you! on the back cover of the phone book, there is required to be a “Guido & Nunzio Llc, protecting your business”, on the inside.

  • Paul Marks

    LISTEN to the advertisments.

    “If it is not your fault…..”

    NO, NO, NO – a thousand times NO.

    One should only sue if the acceident was the FAULT of someone else – their NEGLIGENCE.

    The modern attitude (encouraged by the legal profession) is “if I have suffered a loss – someone else must pay for it”.

    NO.

    Bad luck (accidents) happen.

    If people can sucessfully sue for bad luck – then more and more of society will be undermined. More and more activity (such as manufacturing) will be undermined – and then destroyed.

    Going to court should be a rare and exceptional thing.

    Not a normal way for people to make money.

    “We have got several cases on the go at the moment – I am sueing ……. for……”

    People going around looking for things to sue for – that can not be sustained.

    This perversion of tort law started in the United States.

    A dam burst – a dam owned by club of rich men who liked sailing and had a private lake.

    Lots of people were killed in a town beneath the dam.

    The survivors wanted to sue.

    And IT BECAME A LEGEND IN THE PRESS than they could not sue because they would have to prove negligence – i.e. prove that it was the fault of the sailing club that the dam had burst.

    So a movement started to “relax” the rules of negligence.

    In reality sueing was not a live option because the dam was owned by the club – which did not have much money.

    The rich men who were members of he club were a different matter.

    A honest laywer would have said…..

    “We can only get real money if we prove that the rich men who were members of the club had an active role in RUNNING the club – then we can sue them as individuals”.

    But no – it was more useful (to the legal profession) to imply that the problem was the high standard needed for negligence claims.

    Hence the movemment to “relax” these standards.

    It you allow lawyers top advertise (and I AGREE they should be so allowed) then first make sure you have a decent system of law.

    American tort law itself is the problem – it is has rejected the traditional definition of NEGLIGENCE (the basic foundation of honest tort law).

    And English law appears to be following the same road.

    I repeat LISTEN to the advertisments…..

    “If it is not your fault….”

    No, no, no.

    Not “if it is not your fault” – only if it is the FAULT (the negligence) of others.

  • Mr Ed

    The dam in the UK would come under the Rule in Rylands v Fletcher from 1868, an expansion of the scope of the Common Law to cover an ‘unnatural’ use of land and the accumulation of a potential hazard.

    http://en.wikipedia.org/wiki/Rylands_v_Fletcher

    I blame Facher!

  • monoi

    “It isn’t the advertising that’s the problem, it’s “no win no fee” that’s the problem. If you decide to go to Law and sue someone, you should be prepared to lose and pay the costs”

    What utter bollocks.

    What if you are against a large corporate, or state body, that can make things last forever, and will? They have lasting power, and you don’t. Fair playing field? I think not.

    I am experiencing that particular process, against a london authority. It took 2 years for them to admit liability when the evidence is still visible (and 3 years later, has still not been addressed), and it was very difficult just to know what and where to go for that, especially when you have a job and not all the time needed. It is more than a year since then, and things are not much further. In the meantime, there are expert opinions to gather for example. All that is not free.

    The lawyers, by the way, do not take your case without acertaining whether you have a good case, and I surmise that it is based on jurisprudence so not any Tom, Dick or Harry can just turn up, and a lawyer will sue on NWNF.

    The problem IMHO lies with the judiciary and the politicians, for allowing and excusing the kind of attitudes you describe, the “it must be someone’s fault” mentality.

    As so happens, sometimes an accident can be prevented if the person in charge (who is paid through our taxes) does its job, and the fact that I am still here to comment on this blog is certainly not thanks to them.

  • Laird

    I agree with monoi that contingent fees (“no win, no fee”) aren’t the problem with that American tort system. There is a legitimate place for that arrangement, as he points out. (Although sometimes that skates perilously close to barratry, which no longer seems to be a tort anywhere.) The problem (one of them, anyway) is that we don’t have a “loser pays” system, which I understand exists in Britain. If you have deep enough pockets you can often drag out litigation until you’ve bankrupted your opponent. By the same token, frivolous litigation can be (and frequently is) instituted purely to extort an unmeritorious settlement simply to avoid the costs of litigation. If the loser were required to pay both sides’ legal fees it would solve much of the problem.

    Related problems are the unwillingness of judges to dismiss clearly frivolous actions at an early stage in the proceedings (if at all) and their unwillingness to discipline attorneys who bring such actions. Such attorneys are almost never sanctioned by the courts, even when the abuse of the legal system is blatant and obvious. (I have personal experience with that.) Much of the abuse and delay in our legal system would be eliminated by judges who would simply do their jobs. Unfortunately, that doesn’t happen when they are elected by a mostly ignorant electorate in campaigns that are funded mostly by the trial bar.

  • RAB

    No it isn’t bollocks Monoi. No win no fee encourages frivolous claims, usually against large companies or Local Authorities that the plaintiff knows, almost for certain, will be settled out of court. Claim to have tripped up on a dangerous paving stone or slip on a bit of spilled fruit in a supermarket and the Local Authority and the supermarket almost always pays up to avoid the greater cost and hassle of the court case.

    And I agree with Laird, Judges are not doing their job by letting frivolous proceed. Barratry can be used both ways, as in the case of the Goliath of the Stonewall backed gay couple who deliberately targeted the little David bed and breakfast owners who would not let them share a room in their hotel (though they would have rented them a room each) because of their Christian beliefs. This was done to set legal precendent in a very nasty and self righteous way, and has practically destroyed the B&B owners.

  • monoi

    So in your opinion, the possibility of some frivolous claims (conveniently forgetting that frivolous to you may not be to me, and vice versa) should trump the interests of the non frivolous ones?

    Maybe one day, you’ll have a non frivolous claim against a local authority somewhere. I wonder whether you would use the NWNF system then.

    The bottom line is that if the judges or lawmakers do make frivolous claims possible, they are the ones responsible.

  • RAB

    You’re not listening are you monoi? The way the law should work is this… You think you have a valid claim for damages, compensation etc and you take it to a “Competent” Solicitor who should know the intricacies of the Law and decide whether you have a case or not. I stressed the competent, as over half of Solicitors and Barristers of my aquaintance (I was an Executive of the Lord Chancellor’s Office, Crown and County Court for 12 years) I wouldn’t trust to see me across the road let alone win an uncontested Divorce case even. No win no fee means that the ambulance chasers take a punt and more often than not win, because the case gets settled at the court door before proceedings even begin. A case scheduled for weeks never got inside the Courtroom.

    I was Assistant Listings Officer at the Courts in Bristol once upon a long time ago, and we always had backup cases and trials ready for that very eventuality. High Court actions that had been pending for years, not months, suddenly found a solution before the Case had opened.

    It is a tactic long practised. Civil law is like a game of Poker in that respect. Bluff Bluff Bluff and prevaricate until it is called… Then you settle. And it was incredibly frustrating and time consuming for those of us who were charged with administering Jusice, not just making big Moola out of it.

    No win no fee exacerbates all this. The Courts become clogged with try on’s. But best of luck with your case, frivolous or otherwise. Could you not have found a Pro Bono Lawyer? There are plenty out there who are rich enough already to represent a worthy cause.