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New Ethics Rules in Rochester NY limit the "Heavy Hitter" ads.

New ethics rules for lawyers: Tone down ads Nicknames out, disclaimers in starting today Michael Zeigler Staff writer Post Comment (February 1, 2007) — Eugene F. Pigott Jr. used to wince when he saw lawyers tout themselves in television commercials as "The Heavy Hitters" or loudly proclaim they could deliver "every single dime" to accident victims. "People don't need a circus monkey telling them, 'I can do a better job than the last circus monkey you might have seen,'" said Pigott, associate judge of the state Court of Appeals, New York's highest court. So last summer Pigott, then presiding justice of the Rochester-based Appellate Division of state Supreme Court, joined the top judges of the other three appellate divisions to propose new ethical rules to protect consumers from lawyers' ads that are misleading, inappropriate or overly aggressive. A revised set of the rules takes effect today. Although they're less sweeping and restrictive than the original proposal, they'll still change the way lawyers advertise in broadcast and print media and on the Internet. Nicknames are out, such as the moniker of "The Hammer" used by former Rochester personal-injury lawyer James J. Shapiro, who was suspended in 2004 for ethical violations. Ads are prohibited if they show lawyers in situations unrelated to their professional competence — such as ones broadcast by the Syracuse firm of Alexander & Catalano, who portrayed their name partners as baseball players tagged "The Heavy Hitters." Ads must include disclaimers that prior results, such as multimillion-dollar verdicts or settlements, don't guarantee results in future cases. Although actors can be used if the ads disclose that the actors are being paid, ads can't include testimonials from clients whose cases are pending. Lawyers can use pop-up ads on their own Web pages, but not on other Web sites. Rochester lawyer Michael R. Wolford, who led an effort to monitor lawyers' ads in 2005 as president of the Monroe County Bar Association, said he hopes the new rules will restore dignity to lawyers' ads. "I don't want to build up anyone's hopes or expectations that this will change the climate significantly, but it's a step in the right direction," Wolford said. "Hopefully, the most offensive ads will be dropped." But the new rules will face an immediate challenge. Lawyer James Alexander of Alexander & Catalano said his firm would join with the Public Citizen Litigation Group of Washington, D.C., and the New York Civil Liberties Union to claim in a lawsuit that the rules impinge on lawyers' First Amendment rights. "We still feel that some of these rules are vague and contradictory and difficult to enforce," said Alexander, whose firm advertises heavily in Rochester. "We believe it has to be decided whether this violates our free speech right. We do intend to file a lawsuit in federal court very shortly to get a determination that everyone can live with and (that) will be the final word," Alexander said. In the meantime, he said his firm has changed its advertising to abide by the rules and omit references to "The Heavy Hitters." Lawyers across the nation have been allowed to advertise since 1977, when the U.S. Supreme Court overturned restrictions on lawyers' ads in newspapers. Follow-up decisions opened advertising for lawyers on the airwaves, in the Yellow Pages and in cyberspace. Every state regulates its own lawyers ads. In New York, the Lawyers' Code of Professional Responsibility restricts ads that are false, deceptive or misleading. Alleged violations of the code are referred to the Appellate Division and its Attorney Grievance Committee. But last year, court administrators and the legal community cooperated in an unprecedented effort to change the Code of Responsibility to rein in ads that administrators believed have discredited the legal profession. In a large part, the new rules are a legacy of Shapiro, whose take-no-prisoners TV ads in the 1990s featured explosions, falling bodies and car crashes. A frequent target of disciplinary rules, Shapiro called himself "The Hammer" and promised to make those who injured his clients pay "every dime I can." In a 1996 ruling, the Appellate Division said Shapiro's ads were "offensive and degrading to the legal profession" but found they were "constitutionally protected hyperbole." Eight years later, however, the court suspended Shapiro for one year after finding he "grossly exaggerated and falsely depicted his skill" and improperly solicited business from a comatose accident victim. Shapiro, who admitted that he had never tried a case in court and frequently farmed out his work to other lawyers, sold his business, lives in Florida and hasn't sought to be reinstated. Thomas G. Smith, president-elect of the Monroe County Bar Association, formerly represented Shapiro. Although Smith said the new rules were needed, he said he believed that Shapiro bluntly stated what some other lawyers imply. "Frankly, every law firm's brochure says that they obtain optimal results," Smith said. "He just said it in a crasser way." As a counterbalance, the new rules will allow lawyers limited puffery: They can advertise if they've been evaluated by bona fide peer-reviews, such as the annual Best Lawyers in America publication. Stephen G. Schwarz, managing partner of the Rochester personal-injury firm of Faraci Lange, said he longs for the days when lawyers' ads were banned. "Speaking personally," he said, "it would have been better if the genie had never gotten out of the bottle and the Supreme Court hadn't opened this up." MZEIGLER@DemocratandChronicle

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