Under Analysis: Disclaimer - Your view on middle-aged lawyers should not be based on this article alone

By Spencer Farris

Robert DeNiro is old, fat and grey haired. I thought this while watching television in the break room on the 23rd floor of the Levison Towers this weekend. The partners finally subscribed to a cable service. The rabbit ears on the television are still up, foil covered and pointing at ten and two. One of the older guys will still adjust them on occasion, although it has no effect. His contemporary will then put them back in the previous position, convinced that this changes the picture quality. The younger lawyers are amazed at this, and make great fun of the wasted energy. Middle-aged lawyers just nod. I noticed myself among the nodders.
My middle-agedness has been on my mind a lot lately. While I don’t know the exact definition of middle-aged, I am certain that I am it – more life in the rearview mirror than the windshield, glass half-empty, diluted by melted ice and so on. Seeing once suave DeNiro turned old cinched it for me today. His best roles are behind him (“Meet the Fockers” notwithstanding) and he is relegated to short runs and straight to DVD productions. He no longer cuts quite the swath he once did. Like me.
If asked to describe myself, one of the first words out of my mouth is inevitably “lawyer.” I love my profession. I like socializing with lawyers, reading lawyer stories and most of what lawyers do. I am proud when lawyers make contributions to society, are elected to office or make good outside the practice of law. Lately, my most perverse pastime is also lawyer-related – looking for bad lawyer advertisements.
I prefer to watch lawyer ads from end to beginning, and see first what is often the silliest part of an already silly ad—the mandatory disclaimer. My state bar association, arguably attempting to regulate taste in lawyer ads, requires a disclaimer to accompany all advertisements; “The choice of a lawyer is an important decision and should not be based solely on advertisements.” Only the middle-aged cynic in me can actually picture a hapless consumer watching a schlocky ad and then saying to himself, “I was going to hire this guy, but now, after seeing that warning, I will keep looking. Thank you for protecting me, Bar Association!” Or some such.
Disclaimers are wastes of ink and space. A disclaimer is the legal equivalent of a school yard “do-over.” It advises you to ignore everything you have just seen and heard, buyer beware, or at least take it with a grain of salt.
The reality is that disclaimers do not help the consumer. Instead, they allow a snake oil salesman a safe harbor. Under the laws of most states, an advertisement can consist of 56 seconds of preposterous claims, so long as the last four seconds say “Everything you have just seen or heard is not true, your experience will probably be different, and everything we have just told you is not an indicator of what will happen to you if you use our service.”
It should not surprise anyone that my preferred method of civil disobedience is to attach my own disclaimer to e-mail correspondence. It is lengthy, contains all kinds of things that have nothing to do with the e-mail, and is an open mockery of disclaimers. Although I have sent out thousands of e-mail, only a handful of folks confess to even reading the disclaimer. This disclaimer was originally meant as humor, but it shows why misleading advertisements work despite the grains of salt included at their end.
The mere fact that lawyers spend millions to advertise on television proves that ads work. Is it reasonable to believe that a 60-second sales pitch will be less effective when the end of the ad warns you not to believe it? The warning is just as effective as the warning labels on the side of beer and tobacco products.
This week, I found a bankruptcy lawyer who advertises that he “wrote the book on bankruptcy, because I have been through one myself.” This lawyer writes a blog, and his August 3 edition was about a man arrested while pretending to be a bankruptcy attorney. The man, actually an escaped convict, handled cases without a law degree.
Occasionally, my practice wanders into bankruptcy court, and it is no place for the timid or unfamiliar. The fact that this fake lawyer had no complaints from clients notwithstanding, the field is full of mines. On the other hand, pretending to be a bankruptcy attorney has all the cachet of pretending to be a backup right fielder. The choice of a lawyer is an important one, and you should probably hire an actual attorney, whether or not he has been bankrupt, to help you in bankruptcy court.
The law is a localized business. It is difficult to represent clients in court if you aren’t willing or able to go to the local courthouse. My newest favorite disclaimers are those that appear at the end of ads by “national” law firms. These ads hawking legal services here in mid-America from firms in New York and Los Angeles, on cable television and elsewhere, go on and on and on about the firms and their successes but often add a line at the end that says “Your case may be referred to a firm in your local area and handled by them.” Because they ignore local bar disclaimer requirements, potential clients are apt to hire these firms based on their advertising alone. The national firm will then choose the best local law firm for the client.
I don’t advertise on television, but I am thinking I should. My ads would include all the hallmarks of good lawyer advertising—loud voiceovers, sirens, flashing lights, perhaps a large inflatable blue gorilla or pink elephant, and a sympathetic actor at the end to tell folks to hire me. Maybe I can get DeNiro – more “Godfather” less “Taxidriver,” of course, to play me. Your mileage may vary, some restrictions apply.