LAWYER MARKETS AND CLIENT ADVERTISING

Michael Sean Quinn*

What happens in and to a market when the prices of those selling goods and services rise beyond consumer expectations and/or consumer tolerance? How might all this happen in the market place for legal services charged on an hourly basis. (These observations will not apply to contingency fees—at least not here–though they might apply analogously to fixed fee arrangements. In any case, “L” and “Ls” will denote “lawyer” or “lawyers” and closely related persons or entities.)

Some of the following will occur, either alone or in combination. And, of course, there are other situations that can have influence. Indeed, I suspect that they are growing.

(1) All (or nearly all) potential customers will stop purchasing the service.  This is unlikely in the legal market place. If someone is selling cup cakes on the side of the road and is charging $5.00 per cup after having charged $0.25 for a while, the business will fail.

(2) Some people and entities do not regard prevailing legal fees as too high, and so keep purchasing. For example, very wealthy people need tax lawyers as well as probate lawyers, but they also need divorce lawyers.  I  have told possible-Cs and actual-Cs many times that litigation is a “rich man’s game.” I have given lectures in which I have suggested that people should buy liability insurance mostly because such insurer’s are likely to have a duty to defend.

(3)  Some people and entities no not regard some of them as too high. The trustee and his lawyers in the Madoff recovery cases will make more than $1 billion in fees, but it is mostly a contingency fee. Huge corporation spend what they must in order to do lucrative Ms and As.  Of course, they are investing in and through legal fees, and they have lots of money with which to invest.

 (4) In smaller cases, there have been temptations for many years to pursue deals, wills, and cases pro se, and the availability of work books and instruction manuals in book stores—How One Idiot Can Divorce Another On the Cheap–as well as similar documents findable on line seem to be working some of the time.  This can be thought of as a new market.

(5) There is also a modified version of this market. In this one the potential customer does most or all the work but gets a bit help over the internet or phone, e.g., the imaginary firm “Zooming, Booming, and Blasting.” Usually, these go with the customer using goods provided, like work books, guide books, internet messages, and the like.

(6) There is a new sort of customer response within existing legal markets, and I will call this “client advertising” or “potential client advertising” or “legal service customer advertising.” All are abbreviated as “pC.” This addition to the existing and more or less traditional market for legal services works by pC advertising his/her interest in procuring legal fees and naming a price or price range. 

Of course, there has always exited price competition in the legal services market, but Ls try like the devil to conceal it, up to an including trying to and actually denying it, even to each other, more or less.  Antecedent price negotiation is not something which is acknowledged to be a common lawyer-pC interaction, and for good reason.  Given the fact that there are now probably way too many lawyers, e.g., in Texas, especially rendering services for more or less the middle class, there is competition for work. Whenever that exists, there is price competition, whether it is kept confidential, i.e., secret, or not.  Here is the attitude of the legal profession: Keep it confidential as long as possible. All honor to the “long gray line.”

(Of course, not all reduced prices are the result of competition.  If someone is placing an emphasis in his/her practice on helping the not-so-well-off, e.g., old people, fees may  be “discounted” out of a sense of moral obligation, or something like that.)

 Now consider a recently publicized case of pC advertising. A fellow was in the midst of a divorce; he had put $45K into legal fees, and he was either running out of money, or he was fed up with spending it. (Cs often get fed up with lawyer activities, partly because lots of it is pointless and partly because they don’t understand what L is doing and why. As all Ls know, there is such a thing as phony practice.) I wonder if his soon to be ex-wife was not involved in what is about to be described, since it was her potential assets that were being spent.

This fellow “nailed” a sign, as it were, to the court house door indicating his need for a new lawyer.  He basically said that he was out of money but that he was licensed in the region to provide a type of service that most people need from time to time and want even more often than the quite need it. He offered to exchange his services for the services of an L and impliedly offered to come to a contractual agreement specifying the tit for tat.  Of course, this is usually called “bartering.” (Several lawyers offered to take him up on it.)


Somebody offered to enter into such a relationship with me not long ago. So what inferences do I draw from this? “Boys and girls, ‘Bartering is back and big-time, soon enough.’”  Imagine: ten loafs of whole wheat bread for each 30” of any deposition. . . .

I suppose it must be remembered that not all barters are legal. For example, rumor has it that there are some arrangements whereby a client pays a lawyer for legal services by means of sexual services. Presumably, there are bargains for such arrangement, and exactly how hourly billing for one sort of these services might be hard to match up with time-based fees for the other. 

A case of this sort may have arisen in Texas this year. According Law360 for November 18, 2015 “[a] San Antonio attorney in private practice [msq–where else in the profession might he have been?] was arrested [on the Tuesday before the 18th] on charges that he forced three former clients to sleep with him in courtroom conference rooms, a motel and in his office, in exchange for his legal services.” He was charged with “compelling prostitution,” and that can carry a sentence of 20 years. His bond, however, was a “mere” $15,000. The women have indicated that they remember the events clearly. Assuming this was not “Cosby Sex,” one wonders why there would be any doubt of recollection.  One also wonders about the claim that the defendant “forced” anything, illegal though his bartering was.**

A more recent illegal barter came up in a Louisiana disciplinary proceeding. It seems that L charged and was paid in “weed.” The Disciplinary Board concluded that L shouldn’t not be prevented from working for this sort of m.j. based misdemeanor. Therefore, it also concluded that the appropriate sanction/punishment would be a deferred one year suspension conditioned upon L’s compliance with a Lawyers Assistance Program, an addiction treatment program. 

(The article in ABOVETHELAW (10/26/15) suggests that the size of the punishment may be to some extent attributed to L’s claiming that he used the backpack full of weed he received as medical m.j. in assisting–or comforting–his dying father.)

Both of these barterings illegal in most states, to be sure, but this is a blawg/blog about client advertising. It is easy to imagine clients making these ads in some hard copy publications–they don’t need to be named; many people already know them–and those pCs who are digitally or cyber inventive might even be able to think up ways to do it on the internet. 

I may have missed something as I pondered these matters. If ads of lawyers are getting worse as time passes–in the sense that more and more of them have less and less good taste–a state of affairs against which at least some pCs will rebel on aesthetic grounds and either (or both) avoid L ads, while further sustaining Ls themselves, or begin issues parodies of them in the form of absurdist art. Of course, tasteful lawyers may try to defend the legal profession by starting to do the same thing.  This would be tasteful lawyers sarcastically sneering and thereby publicly criticizing lesser, lower-class lawyers–something traditionally thought to be contrary to the honor of the profession.  

If the reader thinks that such aesthetic retaliations are entirely inappropriate, look at the easily findable (since “virally” available on the “Net”)  disgraceful and truly wretched TV(?) ads available for the “Texas Law Hawk.” Once these are inspected and evaluated, the rational lawyer will expect humorous pC parodies and conclude that some lawyers will produce responses, at least on social media. 



*Michael Sean Quinn, Ph.D., J.D.
The Law Firm of Michael Sean Quinn et
Quinn and Quinn
        1300 West Lynn Street, Suite 208
                                                              Austin, Texas 78703
                                                                  (512) 296-2594
                                                             (512) 344-9466 – Fax
                                                  E-mail:  mquinn@msquinnlaw.com

For the uninitiated, the phrase “sleeping with” does not imply that any one was actually asleep, during or together after the “compelled” acts. It is a polite term of art for a type of usually regular stay-over visits.