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For personal injury lawyers, getting a steady volume of clients is crucial, but the competition is fierce. In New Jersey, a potential plaintiff has thousands of lawyers from which to choose. Advertising in newspapers or the yellow pages only adds to the glut. Placards on billboards or buses are brash but expensive. And buying television or radio time is cost-prohibitive for a solo practitioner or small firm. Then there’s cooperative or group advertising — billing oneself as a lawyer available for work in certain geographic and practice areas. You get wide television exposure for months for a fraction of what it would cost for one spot. It’s cheap, and it gets results, but is it ethical? Such programs come dangerously close to being referral services, which in New Jersey can only be operated by bar associations on a nonprofit basis. The New Jersey Supreme Court Committee on Attorney Advertising has reinforced the danger of crossing that line. A notice in last week’s New Jersey Law Journal warns that some lawyers “are presently being asked to participate in a client-marketing scheme, through television advertisements” and cautions lawyers “to use care in evaluating whether any television marketing proposals by others violate the applicable Rules of Professional Conduct.” The notice came in response to a query from a lawyer solicited by one such a program, one that has been offered to lawyers in the state for a decade. The Lawyers Group Advertising Inc., of Stamford, Conn., in fact received a letter from the attorney advertising committee in 1996, giving it conditional approval after it had made changes to its TV spots. Edward Malley, the founder and head of The Lawyers Group, says those changes have remained in effect, adding that his company routinely reviews its ads to ensure they comply with rules of the states in which it operates. Says the company’s director of operations, Judith Barksdale: “We believe we are in compliance. … We make every effort around the country to make sure we’re in compliance.” Malley says that 15 to 20 New Jersey lawyers or firms have signed on with his group. They pay an annual fee of $2,000 to $2,500 and a monthly fee of about $1,000 to $1,500. The service is offered on a month-to-month basis. If a lawyer or firm drops the service during the year, no part of the annual fee is refundable. The variation in the fees depends on the density of the area; urban areas cost more. “Sometimes we couple an urban area with a more rural or suburban area for a lawyer in a low population area,” says Malley, a former television reporter who has been in the attorney advertising business since 1982. The ads run in the New York TV market on commercial Channels 5, 9 and 11, usually from about 9 a.m. to 2:30 p.m., according to Barksdale and Malley. Time is bought during talk shows such as “Rikki Lake,” “Jerry Springer” and “Montel Williams,” as well as the plethora of judge and court shows. The targeted audiences are poorer, unsophisticated people who are looking for a plaintiffs’ lawyer after an auto accident or slip and fall. The cases are usually small, though Malley says occasionally “a big one comes through, over six figures … .” The TV ads urge potential clients to call if they have been injured because they may be entitled to collect money. When they dial the toll-free number, they hear a recording that tells them, in part: “Thank you for calling The Lawyers Group. … This call is free. A lawyer will speak to you in a moment. Remember, if you’ve been injured you may have a right to collect money. Speak with a lawyer for free.” The “right to collect money” comment is then repeated. Then, within seconds, the call is routed randomly to a lawyer who has bought ad time for that particular area. Eight calls by a reporter in Newark, N.J., were routed to seven lawyers or firms, with one lawyer coming up twice. Three of the lawyers were in Newark, two had offices in Jersey City, with others in Cranford, Short Hills and Upper Saddle River, N.J. ANOTHER COMPLIANCE CHECK The attorney advertising committee’s notice asked lawyers who are using such services, or who have been solicited to sign up, to check to see whether use of the services might violate RPC 7.1 and RPC 7.3(d) and (e). The notice also directed lawyers to read the committee’s Opinion 13 and its supplement. Together, they “delineate the criteria for acceptable joint marketing ventures and prohibited referral services when using television commercials to obtain clients.” RPC 7.1 bars false or misleading communications about a lawyer’s service. RPC 7.3(d) bars lawyers from giving anything of value to a nonlawyer or organization to recommend or secure a client. RPC 7.3(e) bars a lawyer from helping a person or organization “that furnishes or pays for legal services to others to promote the use of the lawyer’s services … .” Opinion 13 was issued in 1992 by the committee after it banned what it concluded was a referral service that used TV commercials and was known as PITLA, for Personal Injury Trial Lawyers Association. The opinion outlaws what it labeled as “directive conduct,” meaning that the advertising service may not steer potential clients to particular lawyers. In 1993, the committee published the supplement to Opinion 13, saying it believed that “more clarification was necessary to ensure that the ‘dividing line between acceptable advertising and a prohibited referral service’ is apparent in a television broadcast.” The supplement, in fact, incorporated the requirements that had just been laid out by the committee in a letter to The Lawyers Group outlining what it must do to pass muster. Opinion 13 and its supplement require an attorney TV ad to clearly state, and display on the screen, that it is an “attorney advertisement.” The ad also must have a prominent disclaimer that the service is not a law firm, individual lawyer, or referral service. The narrator must say those words. In addition, the names and addresses of at least some of the lawyers or firms taking part in the cooperative ad must be displayed in a manner that allows the viewer to read the information. Quick scrolls up or down will not cut it. A check of The Lawyer’s Group ads shows apparent compliance with the rules and the opinion and its supplement. Callers are routed through to a lawyer’s office, with no person involved making any judgments about where to direct the call. The TV viewer is told by the narrator, and sees from the screen, that the service is attorney advertising. Disclaimers advise that the service is not a firm or a referral service. Moreover, names and addresses of lawyers and firms are displayed during the ad. George Kenny, who as chairman of the attorney advertising committee signed last week’s notice, says committee members have yet to view the TV ads. He and Samuel Conti, who serves as committee secretary, say the committee thus far has only reviewed a generic promotional video tape that Malley’s company sends to lawyers around the country. In that video, Malley touts the effectiveness of the ads, as do lawyers from New Orleans, Washington, D.C., West Virginia and New York state. Actors say, among other things: “Just pick up the phone, call The Lawyers Group. … The advice is free. Get the money you deserve for your injuries. … Call a lawyer who will work to get you your money. Get help for your serious injury. Call a lawyer who will fight for you. Your lawyer collects only if you collect money. … We help injured people.” One lawyer who is using The Lawyers Group, Short Hills, N.J., solo practitioner Marc Kaye, says that as a result of the committee’s warning he will “review the notice and the RPCs and do my due diligence.” He declines to say more until then, and calls to five other lawyers and firms were not returned. Says Kenny, “That’s all we want lawyers to do.” He and Conti say the committee will discuss the matter at its next meeting, on March 25. Kenny adds that in addition to the ads, the committee will look at contracts between the service and the client-lawyers. “How is the contract structured,” he asks. “Is it structured to ensure that the lawyer isn’t paying the group for a referral?” The Lawyers Group, which Malley says has more than 300 lawyers or firms on board in more than 40 states, is not the only cooperative ad service for lawyers around. Other firms, including The Injury Helpline, a division of R.W. Lynch Co. of San Ramon, Calif., also solicits for business in the state. One new service, run by a personal injury solo practitioner in Roslyn, N.Y., and using the telephone number 1-800-HURT-911, is about to start doing business in New Jersey. The Roslyn lawyer, Philip Franckel, has a Web site with a New Jersey link that states that all members of his cooperative “are required to be members of the Association of Trial Lawyers of America-New Jersey.” Cornelius Larkin, executive director of ATLA-NJ, says that when he learned of the wording, which he says gave a false impression of an affiliation between the service and the bar group, he asked Franckel to take it down. Franckel, whose Web site features the sound of an ambulance siren for those with speakers on their computer, did remove the language on Friday. Franckel and his recorded phone message say he’s only operating in three states, excluding New Jersey. He also says he has one client, a Dallas attorney who offers pages of testimonials on the Internet. Franckel says he’s about to sign a contract with a New Jersey firm and will soon start buying airtime in the New York TV market. Larkin, when discussing TV ads for lawyers, and lawyer ads in general, echoes what officers of ATLA-NJ have said in the past. “Some are fine, but some are less than tasteful and don’t advance the perception of the profession.”

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