Overview
Reprinted with permission from the American Bar Association, The Journal of the Section of Litigation.
Next time you are counting the cars on the New Jersey turnpike, see if your eyes are diverted to a different but hardly more edifying phenomenon. There, as all across America, on huge highway billboards, just as on baseball video boards, in newspaper ads, and on TV, you will see the less than completely happy consequences of the U.S. Supreme Court’s ruling in Bates v. Arizona permitting lawyer advertising. The nearly ubiquitous character of these adverts can be a bit jarring, particularly since many tend to be no more tasteful than the other advertisements they may have supplanted. “Win Big Verdicts!!” “Get Cash!!” “Hurt in an Accident?” All too successfully, lawyers have gotten in the habit of selling themselves and their services to Americans just as soapsuds manufacturers and plumbing services did in yesteryear, though perhaps less honestly because lawyers are less certain than their fellow advertisers to be able to deliver the goods.
Don’t think the purveyors of these eyesores are just bottom feeders, by the way; nor are they the province solely of personal injury lawyers. Lawyers and law firms of all stripes have given in to the temptation. Tune into a classical radio station these days and you are sure eventually to hear some highbrow pitch for one law firm or another puffing its professional chest as a collection of “trusted advisors” or “zealous advocates” of premier quality. As part, too, of these marketing endeavors you will find much evidence of America’s branding and sloganeering craze, lawyers gussied up with euphemisms designed to make their lawyering seem the province of the highest moral principle. Ever wonder how divorce lawyers became “family law” specialists, and custody fights a matter of “fathers’ rights”? There is nary a lawyer who owns up to that impersonal technocratic name of a “litigator” anymore. There are only “trial lawyers,” complete with visions of Clarence Darrow, even as the number of those who actually try cases declines yearly. Every lawyer, meanwhile, has been magically transformed into an “attorney,” not to say “attorney-at-law” or, mirabile dictu, a “counselor.”
Curbing the Excess
There have been a few less-than-compelling efforts to curb the excesses of such illusion-making. Some states have taken a firm stand against lawyers calling themselves “experts,” believing this might cause laypeople to get the wrong idea about what lawyers are offering by their services. As lawyers work with an unpredictable and uncontrollable future, client expectations need to be kept in reasonable check. But one wonders whether amidst the email addresses that have woven the promise of “large verdicts” or “ready cash” into Internet handles, or the ads portraying lawyers as your one indispensable advisor, not to say friend, these mostly symbolic, seldom-enforced, and semantic prohibitions are really doing the trick.
No development along these lines is more concerning than the spate of new publications claiming to have identified the best or most prominent lawyers in a particular field. Many, though not all, of these glossies are based on no hard information whatsoever. Seemingly at random, lawyers come and go from the annual honor rolls. Some magazines solicit lawyers’ investments in them to secure a place on the list or grace a splashy cover story. Such promotional fluff often comes at the price of accuracy. Every lawyer knows a story of a lawyer misleadingly said to be a leading real estate litigator who really does real estate transactions. But even law firms that would not deign to pay for the coverage, dismissing with a disdainful snort the opportunity to grace a cover or two, nevertheless proudly list such “awards” on their websites as if they were proof of ability and results.
A few state authorities have fought back. New Jersey, for example. Some time ago, the New Jersey Bar put its foot down, quashing such seemingly accidental or purchased celebrity as a particularly misleading form of lawyer advertising. It is now impermissible in New Jersey to represent yourself as one of the anointed “best” unless the publication in question has relied on verifiable scientific methods in reaching its conclusion of superior quality or ability. If you claim to be a “leading” lawyer in the Garden State, there must be proof, objective data, to back up your celebrity—peer reviews, for example, to provide evidence of your actual skill, rather than such bragging rights as stem only from the larger size of your pocketbook. As a result, many of the best-known rating sheets hardly are tolerated in the state—a meager, if still valiant, effort to hold back the tsunami of lawyer advertising that exists otherwise.
Peer reviews are at least something; local lawyer communities seem to have a pretty good sense of who’s good and who isn’t. Client summaries help too. But all these approaches suffer from bias and misinformation. Indeed, there’s an overarching and rather troubling question of how one would prove superiority as a lawyer anyway. Dependent as it is on that elusive ability we call good judgment, which is necessarily imperfect amidst the recalcitrant future, lawyerly skill would seem to be the very antithesis of something measurable or subject to scientific evaluation or verifiable proof. How can we assure laypeople they are getting someone good?
But this is not the only, and maybe not even the greatest, problem with lawyer advertising. It is not just that claims to be tops in a field might mislead the public. They also have a tendency to mislead the lawyers themselves. Most lawyers say they know better than to believe such press notices, even if the uncertain provenance of the rankings is no proof against the disappointment of exclusion. But more important is the more general distortion in lawyers’ own understanding of what they do. Lawyerly advice is not like soapsuds or even plumbing services. Most lawyering is about predicting what will happen, as inexact an activity as one could be. Lawyers who speak of big verdicts know, or should know, better. There is and can be no guaranty of a favorable outcome, as they would be quick to tell a client if he sought one.
Lurking in the shadows is the problem of money. “What?” you say. “Isn’t lawyering all about moneymaking?” In a word, no. It’s not just that money is not the measure of lawyerly skill. It isn’t even the point. What makes lawyers professionals is devotion to others, first the legal system and then their clients, who, as the rules pithily put it, are to be represented “zealously within the bounds of the law.”
Lawyering is not, and is not like, business. A simple comparison of the curricula of elite business schools and law schools will prove as much. Business schools hardly set out to teach you how to “think like a businessman.” It may take years to build a business, but a person setting out to do so is a businessperson right away. Despite our contemporary impatience with being recognized for our intelligence and skill, it takes a decade or two for the lawyer title to really fit. And if business is about the future too, business success is all about money and is measurable in earnings. Lawyering is not. Lawyers know, though they often forget, that being the richest lawyer is no proof that one is the best, however many cover photos in lawyer magazines your wealth may allow you to pose for.
Kudos, then, to the New Jersey Bar for understanding, however imperfectly, these issues. ’Tis a pity, however, that it has not simultaneously looked more deeply into its rules concerning practice in the state to see if they jibe with these finer elements of lawyer professionalism. Indeed, New Jersey’s rules concerning practice by out-of-state lawyers seem suspiciously oriented toward the protection of lawyers’ earning power, not their capabilities.
New Jersey Isn’t Alone
To be fair, New Jersey is hardly alone. Every lawyer, nationwide, recognizes that she is restricted to practice in the jurisdiction or jurisdictions where she is admitted. The rules for litigators are simple: No state bar admission, no work. No matter how distinguished your practice in your “home” courts, you may not go litigate elsewhere, unless admitted there. Well, sort of. There is always a pro hac vice application, which turns out to be a rather routine exercise in most cases, California being a bit of an exception. That state’s bar keeps track of the number of such admissions and, at a certain point, will notify an out-of-state practitioner that it is time to take the California bar if she wants to appear again. But for the most part, it’s easy to get admitted, at least temporarily, in “foreign” courts.
This is a curious combination, is it not? An absolute bar, but with an easily met exception. Consider the catch. Usually, one must employ a local lawyer too, as local counsel, a required “mail-drop” even now that email and electronic filing are nearly ubiquitous. Why? Note that the requirement is often less than it seems, as the out-of-state lawyer, once familiar with the judge, may soon be doing all the work herself. But the local lawyer still gets hired.
Switch now to a corporate lawyer and the situation becomes a little different, and a lot less clear. Suppose you practice in Minnesota and your Minnesota client decides to do business with a Nebraska company. A contract is being negotiated. What do you have to do to represent your client in the matter? Suppose the negotiations take place in Omaha. Do you need to have a Nebraska lawyer participate? Or suppose it involves Nebraska real estate. Anything more you need do? Separate out for purposes of this consideration whether it would be advisable to hire a Nebraska lawyer to help. Is it required? And why?
New Jersey has blown hot and cold on some of these issues over the years, and the reason is all too obvious: New York City. With that legal behemoth across the Hudson River, New Jersey lawyers might not stand a chance to build a practice if New York lawyers can, willy-nilly, handle New Jersey matters. The problem, if it is one, could perhaps be solved by offering good New Jersey lawyers at considerably lower rates, but suffice it to say that New Jersey is not sufficiently satisfied with that free market approach. In its place, New Jersey has imposed a certification process that an out-of-state lawyer is obligated to follow. For transactional lawyers, this provides that, in all but the “occasional” situation that might otherwise result in “substantial inefficiency, impracticality or detriment to the client,” local lawyers are an essential part of the equation. You must have one. In litigation, New Jersey has also reiterated the hard-and-fast rule that a lawyer appearing in a New Jersey court must be admitted in New Jersey either permanently or provisionally on a pro hac vice basis. And, importantly, the latter still requires the hiring and presence of a New Jersey lawyer.
Why Do We Have Rules About State Bar Admission?
Now none of this sounds very strange at all, as most jurisdictions follow suit with greater or lesser requirements. New Jersey is, thankfully, a little clearer about what happens if the lawyer is negotiating an out-of-state transaction for an out-of-state client (mostly permissible) and whether having a New Jersey–admitted lawyer in your firm will cover all bases (it does not). But, otherwise, all seems conventional. But does it make sense? Why do we have these limiting rules at all?
Think about litigation, especially in federal court. In such cases, the general rules of court and evidence are the same in every courtroom anywhere in the country. Why cannot a lawyer licensed to practice in Florida federal court participate in a case in New Jersey federal court? There are local court rules, to be sure. But what’s so special about those? Are the local rules in New Jersey federal court related to being a New Jersey lawyer? And if so, what’s so hard about reading the local rules before you walk in the door of the New Jersey federal courtroom? The pro hac vice admission makes a mockery of the whole process anyway. Once you have read the local rules, presto, you are admitted and free to ditch your local lawyer as a practical matter too.
The matter hardly makes any more sense when applied to state court. Again, this is not a matter of whether it is perhaps advisable to consult a New Jersey lawyer, about local ways and means or the judge, just as it is advisable for a general commercial lawyer to consult a bankruptcy law specialist before waltzing into bankruptcy court. But why is it, and why should it be, required? And, on the transactional side, what makes it necessary to be or employ a New Jersey lawyer merely because a transaction is being negotiated or taking place there?
The whole thing made a lot more sense, of course, when there was something special about each jurisdiction. Not too long ago, any lawyer from out of state who thought about handling a matter, litigation or corporate, in Louisiana needed to approach the transaction or lawsuit with some trepidation. Louisiana has a civil law history, dating to the Napoleonic Code. The ways and means of law in Louisiana were, and in some cases still are, decidedly different from those in other states. This is an extreme example, but it was once true nationwide that there were wide divergences from state to state in what the law provided. Lawyers were specialists in the law of their own jurisdictions, and they were a necessary part of good practice there. The bar associations and courts rightfully sought to make sure that the work of any lawyer purporting to practice in the state met the qualifications necessary for the good practice of law.
But times have changed. No state’s law is really so different from any other’s these days. Even Louisiana has mostly conformed to the norms. There are a variety of reasons. There is the need for some regularity in business dealings and litigation procedures. No state wants to be excluded from the boon in jobs and spending that comes with the relocation of a business there, and so each does its best now to stifle worries about how a company will be treated under the law or in the courts. This has been given a nudge by the Model Rules and Restatement movements. Nor is that the only change. Time was that a Delaware specialist was necessary to tell you about Delaware law. Now you can educate yourself. All Delaware law is no more than a few mouse clicks away on the Internet. What makes a Delaware lawyer better able to advise you on these matters than you can advise yourself? Delaware lawyers may be able to answer queries more easily, and perhaps less expensively. But if you have the time, and you can make a suitable arrangement with your client, what’s to prevent you, from a quality standpoint, from going forward with the deal?
In the midst of these developments, one wonders if there is anything more to individual state qualifications than a device for the full employment of local lawyers. What clearly arose from a need to ensure the competence, not to say capability, of local lawyers often seems little more these days than a cartelization of the profession. New Jersey was particularly good at ferreting out at least some of the error in the idea of leading lawyers, even if maybe it did not see the full problem posed by lawyer advertising and the reduction of lawyering to moneymaking. It’s too bad it has seemingly not thought further than the pocketbooks of its local practitioners into what actually qualifies a lawyer to practice law in New Jersey in the first place. It is perhaps time now for the matter to be considered more generally.
All in all, our system does not work so poorly, setting aside the uncertainties that, New Jersey aside, seem to exist for transactional lawyers. All lawyers have an interest, indeed an obligation, to ensure that the public can depend on the lawyers in any particular jurisdiction to know what they are talking about. It is, among other things, difficult to know how the matter of lawyer competence can be policed, if not through state bar associations and state supreme courts. But the time may not be so distant when the legal profession might want to rethink the whole matter, in its continuing interest of making quality, and not economics, the heart of the profession.