Las Vegas Sun

September 2, 2014

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Ads so tasteless you want to sue

In one local lawyer's TV advertisements, you've seen him feeding bananas to a man dressed as a giant gorilla. You've seen space aliens seeking his legal advice and oversized telephones smashing down on unprepared litigants.

And to think, this could be just the warm-up act.

Such ads - in this case from Las Vegas personal injury attorney Glen Lerner, aka the "Heavy Hitter" - are at issue before the State Bar of Nevada.

The Bar's Board of Governors has been hotly debating two main questions: Should reviews of all lawyer ads be mandatory, to make sure they aren't "deceptive or misleading"? And should the Supreme Court be urged to drop its rule mandating that such ads be tasteful and inoffensive?

It's unclear, say Bar officials, just how many of the state's roughly 6,600 licensed and active attorneys advertise their services. But such ads, which can be seen and heard in newspapers, radio and television, and on billboards, bus stops and the Internet, can seem all-pervasive at times, a large and largely unwelcome part of the visual fabric of Las Vegas.

"It's buying in to the hype of the valley, and a lot of lawyers do it," says Craig Walton, president of the Nevada Center for Public Ethics. "The question is, are these ads ethical, are they promoting decent representation?"

The Bar's 15-member board is likely to decide what changes to recommend to the state Supreme Court when it meets Aug. 23-24 in Winnemucca.

A commission put together by the Bar recently recommended the creation of an Advertising Review Committee, which would review all attorney ads for truthfulness. At the same time, to protect the commercial free-speech rights of lawyers, it recommended that the state follow the American Bar Association standard, which says only that lawyer ads must not be deceptive or misleading.

Under the current rule, adopted by the state Supreme Court in the early 1990s, attorneys also are prevented from using scenes that create suspense or contain exaggerations, and they cannot use dramatizations, testimonials or endorsements.

"A lawyer's advertisement, regardless of medium, must provide only useful, factual information presented in a nonsensational manner," the rule states.

State Bar President Rew Goodenow says the bar receives about 1,200 complaints annually. Of those, he says, 60 or so deal with lawyer advertising. Two-thirds of those complaints come from lawyers; the rest, from clients.

According to a March 1 Bar report, client complaints have mostly involved misleading foreign-language ads promoting firms at which a paralegal may speak the language but the lawyer does not.

They also include complaints about lawyers who promise a low contingency fee but then charge another, higher rate, and attorneys who purport to be aggressive litigators, but in fact push almost every case toward settlement.

No lawyer was publicly reprimanded in the last year for false or misleading ads, a State Bar official confirmed.

Lawyers are conflicted about the issue of advertising.

"They have a Constitutional right to do it, though I don't think it's doing the industry any favors," says Charles Kelly, a Las Vegas-based criminal defense lawyer and former federal prosecutor. "It certainly undermines the ability of the profession to call itself a profession."

Kelly advertises in the Yellow Pages but not on TV or in other media. "The public ought to know what kind of lawyer is in their best interests," he says. "If they think that's a guy dressed in a monkey suit, then they should hire him."

Others say advertising is simply an economic necessity. Says veteran personal injury litigator Sam Harding, whose ads appear on TV channels 5 and 13: "In today's marketplace, attorneys have to advertise."

But Harding says his ads are factually and ethically scrupulous - and that he voluntarily gets Bar approval before they appear, just to make sure.

"I've been sending my stuff to them anyway, for years now," he says. "My reputation means more to me than anything."

"Heavy Hitter" Lerner is the state's most prolific advertising lawyer, according to Vince Consul, immediate past president of the State Bar. Close behind Lerner are fellow Las Vegas personal-injury attorneys Ed Bernstein and Chad Golightly.

Their ads are considered far tamer than Lerner's.

Lerner passionately defends his right to advertise. He went so far as to file a suit in U.S. District Court in March to try to prevent the State Bar from sanctioning him for putting ads on the air it finds distasteful.

Advertising works, Lerner says. His is the largest personal-injury law firm in the state, he says, in part because his ads, which he says incorporate a distinctive brand of humor, are so effective.

"As long as they're not false or misleading, let the public have a chance to see them," Lerner says.

He scoffs at the idea his ads demean the legal profession.

"Oh, God. How are we different than anyone else, other than we have law degrees?" Lerner asks.

Attorney ads, he maintains, shouldn't be restricted to images of "some old guy with a big belly sitting in front of a bunch of law books."

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