He looks like a regular guy. He’s unnamed as they usually are in any one of the dozens of commercials for personal injury lawyers that show up daily on Louisiana television, highway billboards, social media and elsewhere.
These are the ads that were supposed to change on New Year’s Day – but won’t because officials won’t be enforcing the new law.
In this commercial, chosen at random, our regular guy climbs behind the wheel of a new pickup. He talks about a nagging back pain received in a car wreck, yet the insurance company wouldn’t pay. “I did what I see on TV all the time, I made that one call to Morris Bart. He got me $250,000, it’s just that easy.”
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Left unsaid is how much of that $250,000 went to Bart, Louisiana’s highest profile “TV lawyer,” as fees and expenses. Fee structures are set in advance in a written contract, but the amounts vary from case to case, lawyer to lawyer.
Generally, however, a lawyer handling soft tissue personal injuries from a vehicular accident receives about a third or $82,500 in this example.
Critics derisively call the ads “jackpot justice” that equates car wrecks with hitting the lottery and leads to people filing more lawsuits.
Though no studies show a causal connection between advertising and the number of lawsuits, clipping attorney ads was “about all they talked about, at least at first,” when business and insurance met with legislators to begin drafting legislation to change Louisiana’s legal system, said Bob Kleinpeter, a Baton Rouge personal injury lawyer who doesn’t advertise and was the only non-business connected member of the task force that sought lower auto insurance rates.
The American Tort Reform Association, a Washington, D.C.-based advocacy group, found in May 2019 that television viewers in Baton Rouge, New Orleans and Shreveport saw more than 250,000 ads – about one per minute – for lawyers, lawsuits, and legal services during the last six months of 2018.
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But lawyers have the same rights as car dealers to hawk their products. Lawmakers worked around that hurdle by requiring ads trumpeting how much a client received in a particular case to also include how much was deducted in fees and costs. Louisiana legislators overwhelmingly passed two bills earlier this year, both requiring disclosure of fees when the full amount is mentioned. The new law went into effect on Jan. 1.
Bart said he was going to wait on the Louisiana Supreme Court before changing his commercials.
“Lawyers in Louisiana, according to our State Constitution, are regulated by the Louisiana Supreme Court, not the Legislature,” Bart said. “If our Supreme Court enacts some measure requiring that, then I’ll review at that time and decide if I’m going to challenge the constitutionality of it.
Bart points out that the only legal way to limit commercial free speech is to build an evidentiary record showing some sort of harm to the public. “There is no record, at all, built in this case that advertising in any way harms the citizens of Louisiana or promotes lawsuits. I see it as constitutionally flawed,” Bart said.
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But there is strong evidence that insurance companies offer New Orleans and Louisiana drivers less to settle lawsuits stemming from injuries received in car wrecks than they do in other cities, like Atlanta, he said. “It stands to reason that if you don’t offer people the right amount of money, then you’re going to force people to file lawsuits.”
The office charged with enforcing the rules is also waiting for the Louisiana Supreme Court.
“When those rules of professional conduct are amended, if they are amended, to include additional regulatory requirements of lawyers in the advertising arena that will be the day when we begin enforcement,” said Chief Disciplinary Counsel Charles B. Plattsmier at the Louisiana Attorney Disciplinary Board.
The Louisiana Supreme Court released a statement Friday saying the justices are “studying whether or not to adopt additional attorney advertising rules. There is no timeline for completion of the study.”
That Supreme Court justices would have to weigh in shouldn’t come as a great surprise to legislators.
“They know something has to be done,” Republican Sen. Patrick Connick, a lawyer in Marrero who sponsored Senate Bill 115, said of the justices during committee hearings. “We’re hoping that the Supreme Court will bring this under their umbrella.”
Democratic Gov. John Bel Edwards, who had run a small-town general practice in Amite before being elected, signed Connick’s legislation turning what became Act 231 into law.
“Attorney advertising is a black eye,” said state Sen. Heather Cloud, the Turkey Creek Republican who filed the other measure, Senate Bill 395. She said lawyers make false promises of big payouts, which encourages injured people to sue businesses.
Her bill also was approved overwhelmingly by the Legislature. Edwards vetoed the measure, partially to avoid confusion and partially because Cloud gave Attorney General Jeff Landry to ability to enforce the rules, which the governor said “likely violates” the state and federal constitutions.
“Read the Constitution. The Supreme Court is the proper body to make and enforce these rules and not the Legislature,” said Jody Amedee, a former state senator from Gonzales who is name partner in a firm that advertises. He points out that his firm’s commercials don’t include clients bragging about how much they received in compensation.
“The public perception of lawyers is probably not real good and those kind of ads hurt,” Amedee said. Still, advertising is one of the most efficient way for a lawyer to get his name out in the public, he added.