By Michael McQueen

In generations past, the specter of lawyer advertising was repugnant to the fine sensibilities of a profession that behaved as a class of professional guild members. As the second oldest profession, we constantly endeavor to retain the shreds of our dignity. The manner in which one practiced was highly constrained to ensure that our shirt cuffs were never stained with the soil of commerce. In the daysof Cicero, lawyers could not charge for their advocacy, living on gratuities like waiting tables at the local bistro. But a new variety of ambitious, marketing inclined lawyers started nibbling away at this long-established protective crust of conservatism. Advertising has become prevalent, less repugnant, though no less odious. The establishment Bar still looks with sour distaste at those lawyers on the fringes who engage in shameless self-promotion.

As the profession reluctantly embraced the realization that the law is, at the end of the day, a commercial endeavor, the resolve of the gatekeepers weakened and they allowed the barbarians to insinuate themselves into the inner sanctum of the law. Conduct that was once beyond the pale now is commonplace. Now even the oldest and most established firms are not immune from the shameless compulsion of self-promotion. Like enticingly packaged prostitutes lounging in window displays, we make promises few can keep.

The Bar’s one barricade against this commercial depravity is the prohibition against false or deceptive advertising. One state bar prohibits TV commercials promoting a law practice from using good looking actors, since that would be deceptive. This rule was a boon to a quite attractive lawyer couple who are now in high demand as actors for lawyer TV ads. Certainly, the Bar’s quest to stamp out deceptive advertising and practices is laudable, but it raises a perplexing question. With these rules against deceptive practices, why does the State Bar allow all these dead lawyer law firms?

The Rules of Professional Conduct do not allow a lawyer to make a false statement regarding admission to the State Bar [CRPC §1-200]. The definition of a “lawyer” requires that the member be in good standing [CRPC §1-100) (B) (3)]; one may not employ a lawyer who is on “involuntary inactive status” [CRPC §1-311]. And a lawyer may not engage in advertising (which includes stationery), that is false or deceptive, or that tends to confuse, deceive or mislead the public. [CRPC §1-400 (D) (2)].

We all recognize the importance for any product or service of achieving “brand” recognition. Levis®, Prada®, O’Melveny & Myers. But Mr. O’Melveny and Mr. Myers have not been around for years. And there are other firms in which every lawyer listed on the stationery is quite irretrievably dead.

We are a gullible society. A recent newspaper article reported that over one-third of Americans actually believe in ghosts and UFOs. It appears that law firms are attempting to woo this underserved segment of the population, who may believe that a long-departed law partner can still contribute to litigation strategy or resolve nasty probate issues. Many of these firms are professional corporations, which – unlike partnerships do not dissolve when a shareholder departs, but carry on in perpetuity.

Isn’t listing those departed lawyers on one’s stationery somewhat deceptive? Would it not be less deceptive just to name the firms for what they do, e.g. Insurance Denials R-Us; Big Oil Mart, Tree Huggers, P.C.? It seems that law firms are obsessed with the number of lawyers in their regiments, which may explain their reluctance to alter their stationery to reflect natural attrition. The mega-firm of Baker & McKenzie has over 3,000 attorneys. Listing all those lawyers would make their letterhead the size of a phonebook. So keeping the dead guys on the stationery is simpler, if not particularly accurate.

I have never quite understood the quality implications of just sheer numbers. Aside from the horsepower a large firm can bring to a legal dispute, I have always believed the true value of legal services is represented by the individual skills of a lawyer, not the phalanx of lawyers large firms tend to throw at cases.

I recently dealt with a San Diego attorney whom I have known for several years. He has been in a number of different associations and partnerships. When “Mr. Marvelous” sent me a letter recently, his stationery set out, in pride of place, “Marvelous & Marvelous.” Out of curiosity I called his office and asked if Mr. “Marvelous” was practicing with a relative or had he married a lawyer? Not so simple. Apparently, Mr. “Marvelous” opened a new practice and listed his long-deceased father as a partner. To my knowledge, Mr. “Marvelous” never actually practiced with his father, but he apparently felt pretty lonely about it.

Being a sole practitioner and wanting to create the impression of having a large supporting team of   associate lawyers at my beck and call, I have been considering perusing the obituaries and picking out the names of perhaps 20 or so deceased lawyers and putting them on my stationery. My malpractice premium would not go up much, if at all. I’d give the impression to the public of having access, through my Ouija board, to a considerable range of legal experience and historical expertise, and continue the well-established tradition of practicing law with dead lawyers.

 Michael McQueen handles business litigation, estate lanning and natural resources law. He i s a member of CITATIONS’ editorial board.

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