Ethics and the Law: “Girl on the Billboard” - By Robert Pelton

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Thursday, October 25th, 2012

When I drove from Houston to Huntsville to see a client, it was a tossup on who had the most billboard ads: lawyers or fried chicken places. Was it the smiling faces of lawyers and their staff, or someone eating a chicken leg? Seeing those billboards reminded me of the song “Girl on the Billboard.” “Girl on the Billboard” is a song about a truck driver who falls in love with a picture of a scantily clad woman he sees on a billboard along his daily freight route on Route 66. As he sees this young woman daily, the truck driver begins to fantasize about having a relationship with her. One day, the truck driver goes to the home of the artist who painted the billboard and asks for the young woman’s contact information. The painter then informs him that the “girl wasn’t real,” and that he’d “better get the [censored] on his way.” Brokenhearted by the reality that his fantasy girl was not real, the truck driver goes along his way on the highway wailing, “You’ll find tiny pieces of my heart scattered every which a way.” Sound familiar?

When I drive from Houston to Abilene I see billboards by lawyers stating that they are the “Slammer,” the “Jammer,” the “Hammer”—“we win our cases,” and “we don’t plead cases out.” Then I walk in the walls of the prison and see the results of some of these lawyers. While waiting for my client, I talked to several inmates who were mopping the floor and checking in laundry, and they told me stories of what their lawyers told them and then what happened.

All public media advertising must comply with Rule 7.02 of the Disciplinary Rules of Professional Conduct in that it cannot be false, misleading, or create an unjustified expectation about the lawyer’s qualification or services. The rules were created to protect the public. When I hear from an expert on advertisements that the majority of ads do not meet the criteria set by the State Bar, I can’t help but remember those men I met at the jail. Remember, we are dealing with living breathing human beings who were sent to prison like caged animals, so when it comes to advertising we must be careful not to create ads that would leave prospective clients brokenhearted like the truck driver. Most ads have to be reviewed to comply with ethical rules. The contact information for the State Bar advertisement review is 1-800-566-4616, or adreview@texasbar.com .

Article by Don Davidson of Bedford, Texas:

A person walks into your office and wants to talk about hiring you. You quickly ascertain that this person already has a lawyer with whom he or she is dissatisfied, and is therefore looking to replace that lawyer. You instantly remember that Rule 4.02(a) of the Rules of Professional Conduct prohibits an attorney from speaking with a person who is represented by another attorney without that other attorney’s consent. What do you do? Do you have to call the other attorney and get his permission to talk to his dissatisfied client? Fortunately, the answer is no.

Rule 4.02(d) expressly trumps 4.02(a). Rule 4.02(d) says: “When a person... that is represented by a lawyer in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not prohibited by paragraph (a) from giving such advice without notifying or seeking consent of the first lawyer.” The comment to Rule 4.02 is even more explicit: “Paragraph (a)... does not prohibit a lawyer from furnishing a second opinion in a matter to one requesting such opinion, nor from discussing employment in the matter if requested to do so.” [Emphasis added.]

Of course, Rule 4.02(d) presumes that the client approaches the lawyer, and not the other way around. So soliciting a represented person to change lawyers would not fall within this exception to 4.02(a). In addition, the comment reminds us that we must still comply with Rule 7.02, which prohibits a lawyer from making false or misleading communications about (1) the lawyer’s qualifications or services, or (2) another lawyer’s qualifications or services.