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| Scott R. Marshall

Uno, Ocho Cientos, Cuatro, Once PAIN…la la la la la la…(melodious rythmic beat follows). Hey, I listen to the Spanish channel on the radio. What can I say?

Well, I say this: should we lawyers be using 411-PAIN, 1-800-ASK-GARY and their ilk to get business even if the First Amendment allows us to?

“The ultimate good desired is better reached by free trade in ideas — the best test of truth is the power of the thought to get itself accepted in the competition of the market”

Hummmm. There is much wisdom in the words of renowned jurist Oliver Wendell Holmes, Jr., as he so eloquently defended the First Amendment in his famed dissent from Abrams v. United States (1919). Personally, I love the free market and would like to believe that John Stuart Mill's “marketplace of ideas” in which we live would squelch really bad ideas, in favor of good ones. Unfortunately, the market is what wins and it’s not always right.

The First Amendment protects free speech, which has been extended to include corporate speech, political speech, and…lawyer advertising.

I remember the days when lawyer advertising meant having 15 full-page adds in the yellow pages, or better yet, the back of the phone book! Then came billboards. Then radio. Then TV and the Internet. I have always found television and radio ads by lawyers to be somewhat offensive, but hey, caveat emptor, right?

I remember John Morgan’s first TV commercials. Yes, they were awful, but today they have become a polished machine and he has dramatically changed his message (for the better). I actually like some of his ads. Especially the ones where he talks about the things we trial lawyers are NOT allowed to say in front of a jury.

The deluge of such lawyer advertising in Florida over the past fifteen or so years has sprouted a new “non-lawyer” beast in this marketplace of ideas: non-attorney spokesperson referral services such as 411-PAIN and 1-800-ASK-GARY, who claim to have a referral network of the best attorneys (what criteria they use to determine who these wonderful attorneys are is anybody’s guess; although, I don’t think guessing it would be that difficult). These services have thrived in our marketplace. Are they bad ideas? If so, then as Justice Holmes would have had it, they should wither and die. In this case, regretfully, that is not happening. To the contrary, they are spreading from Florida to other major markets across the land. How will they be received? Only time will tell.

To me, and I realize that I may be being a little elitist, they cheapen our profession and do a disservice to the injured people who use them. We are talking about personal injury and wrongful death. Is there a place in this market for the catchy jingles and songs they sing? Apparently so, but do we lawyers have to play a part? They get away with things that, while protected by the First Amendment, no lawyer would openly attach his/her name to (at least I hope not). This is not to mention the questionable (at best) practices in which they have been accused of engaging, as pointed out by my friend and colleague Matt Dolman.

It takes two to Tango. Many people who are injured do not know where to turn. In the absence of direction to the contrary, they look to whoever is talking the loudest. A certain segment of the public may “buy” into these non-lawyer referral services, but without lawyers paying for the right to receive referrals from these services, they would become extinct.

We all know that the best way for a person to find a lawyer is through word-of-mouth. It is free and it is the result of doing a good job for your clients and doing good things in the community. The referral of a friend is not done for money. It is done based upon trust and experience. When my clients refer a friend or relative to me, they are doing so because they had a good experience with me and trust that I will do the same for their referral. There was a time, long ago, when all lawyers got their business this way. Wouldn’t it be great if it were that way again?

The rise of lawyer advertising and the mutation of these non-lawyer referral services have resulted in a perversion of the Oath of Attorney sworn by every lawyer. When you rely on this type of marketing and advertising to get new clients, you run the risk that your clients will no longer be as important to you as they once were. You have created a marketing beast which must be fed dollars, often at the expense of settling a case too soon, for less money. You also no longer rely completely upon your clients for business, so their happiness with your service matters less. More unhappy clients is bad for us all because it perpetuates the image of “greedy lawyer” that is already out there.

That is not to say that you cannot advertise and still do a tremendous job for your clients. I know several firms in the Tampa Bay area (where I practice) who do it very effectively and are very good at what they do. However, we all know that many times there is a sacrifice that comes with mass advertising expense and many times that sacrifice is made by the client as much as the lawyer, not to mention the sacrifice made by our profession and its image.

So, my brethren and sistren (I now refer to my fellow lawyers), as the annual Radius of Influence Conference begins today in Austin, Texas (sadly, without me, as I am out of the country as I write this), I call upon you to shun these less-than-desirable non-lawyer referral services and stop buying into them! If the public keeps using them, we can’t do anything about it, but we can certainly close down the marketplace on our end by refusing to pay them for their service. What say you? Are you so desperate for new clients that you must use these services?

Expand your Radius of Influence. Do good works in the community. Represent your client to the best of your ability. If you build a practice like that, clients will come. When you see a colleague pay for such advertising services, tell them what you think of it. Ask them to reconsider. If we all do that, then maybe, just maybe, we can remove a bit of the "ambulance chaser" tarnish that currently sullies our reputation, and that so many people see in our profession. Hopefully then, our true mission will shine through, as the promoters of public safety and protectors of consumer rights that we are.

Remember: “The greatest compliment you can give us is the referral of a friend or loved one.”


  1. Gravatar for Charles Scott
    Charles Scott

    I totally agree with your comments in this article and hope that more lawyers adopt your philosophy, I have. What might surprise you is that most of the lawyers you see on television, including one big advertiser you mentioned in your article, are on the referral list of these 800-doctor/lawyer referral services. If you want to know who these lawyers are, simply call the bar and ask for Kathy Bible, the advertising counsel and she will send you a list of the lawyers that are currently working with these 800-doctor/lawyer referral services.

  2. Gravatar for Scott Marshall
    Scott Marshall

    Charles, Wow! Of course, I am not surprised that they are on "the list," as it fits with their marketing model, but I didn't realize that the list was available through the Bar. Great idea. Maybe I'll get the list and email them all a link to this post! :-)

    I truly believe the only way to get rid of these "referral services" is through positive, professional peer pressure.

    Thanks for your comment!

  3. Gravatar for Jimmy Davis
    Jimmy Davis

    Good article. I always thought these referral services were in poor taste and certainly not the way I'd want to get new clients.

    I do not believe, however, that shaming will work to dissuade a lot of attorneys. A lot of attorneys out there are openly unprofessional.

    Would it not be better to maybe draft the Florida Bar's Attorney Referral Service into the market to give a professional alternative to the consumers? I'd say draft one of the large advertisers to publicly denounce these referral services as well.

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