So, you may recall back in October 2017 I had an itch and intended to write about a lawsuit in Pennsylvania that would fit in with the recent (seemingly) increased willingness of lawyers to sue other lawyers over their ads, but since I was beaten to the punch, instead I gave you a pointer to a very good piece somewhere else about it.
If that doesn’t ring bells, you can go see that again here.
I bring that lawsuit against a firm with a significant presence here in Memphis, Morgan & Morgan, again because there has been a new development. And, particularly, a new development that talks about something that has always bounced around my brain when I hear a particular advertisement in that firm’s stable.
First, the recent development in that lawsuit, where a local Pennsylvania law firm sued Morgan & Morgan saying that its advertising was false and deceptive because, among other things, Morgan & Morgan only has one lawyer located in Philadelphia who is claimed by the plaintiff in the suit to have little experience handling personal injury litigation. The federal district court has declined to dismiss one aspect of the lawsuit – the allegation that the founder of Morgan & Morgan, John Morgan, is lying when he says in an advertisement that he is “your lawyer.”
Now, why this strikes me in a way I find so interesting. Nearly every time I have heard the line in a particular radio advertisement it has struck me as such an unwise, and unnecessary, thing to say from a legal ethics standpoint.
The line is this: “Remember this, I’m not just a lawyer. I’m your lawyer.”
It’s a nearly Pavlovian reaction for me at this point – I hear that, and I say (out loud if I’m alone or just in my head if there are people around):
“No. No, you’re not.”
And, then, my mind wanders a bit down the path of mulling why that statement in that advertisement feels like such an unnecessary, “own goal” kind of thing to do to yourself.
Your firm has a giant plaintiff’s practice. Your firm is going to have lots of people make appointments and undergo consultations, and your firm is going to turn a lot of those people away. Sometimes it might be for conflicts reasons, sometimes it might be because you don’t think they have a case worth your time. But, either way, you’ve unnecessarily opened yourself up to, at the very least, a disciplinary complaint from someone who claims you broke your promise and violated RPC 7.1 since you actually said you were their lawyer.
Admittedly, that isn’t the exact line of thought used by the federal judge in the Pennsylvania litigation — rather, it is the notion that . . . well, let me simply quote the Court instead of interpreting:
Rosenbaum alleges John Morgan, an attorney with Morgan & Morgan, appears in advertisements stating “I’m your lawyer” and describing “himself to the consumer as a trial lawyer with over thirty years of experience” which “convey[s]” the message John Morgan and Morgan & Morgan will handle the prospective clients’ claim. Rosenbaum alleges, in reality, John Morgan is not licensed to practice law or to legally represent clients in Pennsylvania but the advertisements do not advise prospective clients of this fact….
Accepting as true Rosenbaum’s allegations, John Morgan’s statement “I’m your lawyer” may be literally false or have the tendency to mislead viewers into believing John Morgan, himself, will represent them….
If you’d like to read the full opinion which dismisses much of the Lanham claims, you can read it here.
That part is interesting and could, of course, be argued over and thoroughly parsed since the principals of imputation of conflicts and other matters would make the statement arguably truthful in the event that someone hires the firm, at least.
But, my qualm is the importance of that italicized language right up there. My qualm remains true even for jurisdictions in which the lawyer making the claim is licensed. I remember doing quite a few seminars many years ago that were focused on trying to help lawyer not accidentally end up with client they didn’t want because they were not clear enough in communicating to someone that they were not their lawyer. (There is even a now-quite-long-ago law review piece on the topic that is very good called “Accidental Clients” written by Susan Martyn.)
Admittedly, I’m not an expert in legal marketing but it still strikes me as such an unnecessarily dangerous and damaging statement that is far-too-readily capable of being characterized as false and misleading to a consumer of legal services and far-too-difficult to characterize as the kind of “puffing” that should be treated as meaningless.
Your mileage may vary, of course.