Muzzle the Bar?

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The New York Sun

With all the problems plaguing New York’s tort system, one would think lawyers and judges would have their hands full tackling weightier issues than lawyer advertising. One would think wrong. Witness a proposal currently under consideration that would curtail those ambulance-chasing television spots familiar to viewers everywhere by, for example, limiting the use of celebrity endorsements and actor portrayals in ads, as well as restricting the times when such ads can air and extending the rules to Internet advertising and out-of-state attorneys advertising in New York or providing services to New Yorkers. Just for good measure, the rules would also bar lawyers from soliciting potential clients in the first 30 days after a disaster.

The proposal, a stricter version of guidelines suggested by the New York State Bar Association, has been put forward by a committee made up of the head judges of the state’s four appellate divisions and is open for public comment until September. Although it’s too soon to say how the stricter version will be received, lawyers’ associations generally support this type of a restriction as a way of enhancing the prestige of the profession. Proponents of limitations argue the ads darken the image of lawyers in general. Meantime, the ads contribute to a climate of fear by making people worry they’ll be on the receiving end of a get-rich-quick lawsuit if they’re unlucky enough to be in a car accident, as one advocate of legal reform, Philip Howard, tells us.

That’s all undoubtedly true, because the ads are symptomatic of deeper problems afflicting the tort system, especially here in New York. The state ranked 48th in the nation in a recent ranking on a liability index created by the Pacific Research Institute, with one being the best. New York ranks 38th in respect of monetary tort damages and 48th in respect of “threats” because New York has more lawyers per dollar of gross state product than any other state while ranking among the worst five states for civil cases filed per 100,000 residents (excluding divorces). New York comes in 47th on a measure of the strength of monetary caps on damages, 38th on enacting substantive reforms like contingency fee limits and class-action reform, and 33rd on procedural and structural reforms such as constraints on frivolous lawsuits.

The study didn’t even count New York’s special problems, like the political power of its tort bar. Nowhere is this more evident than with the Assembly speaker, Sheldon Silver, himself a personal-injury lawyer. The firm at which he is currently on staff, Weitz & Luxenberg, even solicits potential plaintiffs to sue the state for injuries suffered at state parks, the New York Post has reported. No wonder it has proven impossible to push tort reform through the legislature.

Although the Supreme Court has ruled that commercial speech deserves First Amendment protection, lawyers are free to set more stringent standards of professional conduct and to refuse to admit violators to the bar. But the better way to solve the problem would be tackle the fundamentals of the tort system in the state, thus reducing actual abuses instead of merely reducing their visibility. New York could cap non-economic damages, a step that has been successful in other states. On the medical malpractice front, the state could adopt the kind of specialized “health court” advocated by Mr. Howard. It shouldn’t be hard to find ways to improve. Forty-seven other states have enacted provisions that are at least marginally better than New York’s status quo. The state and its lawyers would benefit more from real tort reform than they ever would from an advertising ban.

The New York Sun

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