Lawyers Fight Urge to Splurge

There are three kinds of lawyers:

Advertising lawyers, members of a small but growing subgroup who aren’t too proud to splash their names and faces on television screens, billboards and the back of the phone book to drum up business;

Old-school lawyers, that dwindling number who believe Bates v. State Bar of Arizona, the 1977 U.S. Supreme Court decision that overturned state laws forbidding the advertising of legal services, was the worst thing that ever happened to the profession; and …

The majority of lawyers, who would love to market their services in an increasingly competitive environment — if only they wouldn’t be looked down upon as advertising lawyers.

Businesses that sell advertising have spent two decades trying to get dollars out of the third group, with only limited success. But there is one issue that seems to have enough appeal, both legally and financially, to push middle-of-the-road lawyers over the edge —nursing home litigation.

Wilkes & McHugh, the Florida firm that set up an office in Little Rock in 1998, was the pioneer. It has used print and broadcast advertising to troll for clients among the families of patients who have died in nursing homes under questionable conditions.

That the fields in Arkansas are white already to harvest is the shame of the nursing home industry as well as the state government, which, until very recently, let Medicaid rates fall woefully behind the cost of providing adequate care.

Still, the proliferation of ads seeking potential nursing home litigants may have more to do with the increasing size of jury awards than with any actual increase in the number of nursing home patients being mistreated. Awards of $2 million-$3 million have not been uncommon. Then, in June, a Wynne jury awarded $12.3 million to the survivors of a 92-year-old nursing home patient, and a Mena jury awarded $78 million to the estate of a 93-year-old. Wilkes & McHugh was involved in both of those cases.

Hare Wynn Newell & Newton of Birmingham, Ala., set up shop in Little Rock in January. I haven’t seen any traditional advertising, but its Web site leaves no doubt that the primary goal of the Little Rock office is to pursue nursing home litigation. Shortly before joining the firm and opening the office here, Clark W. Mason served as local co-counsel in an El Dorado case in which a nursing home was ordered to pay almost $3 million to the survivors of a patient.

A firm called Nix Patterson & Roach has started using ads on local television to locate nursing home victims and their relatives. Nix Patterson & Roach, as it turns out, has several offices in Texas but none in Arkansas. (Its senior partner, C. Cary Patterson, and the firm itself are big-time contributors to the Democratic National Committee and Democratic candidates — especially those running against proponents of tort reform.)

Just last month, a Fayetteville law firm that had never done any advertising beyond a Yellow Pages listing jumped in with what I consider one of the most disturbing ads. The television ad, which is being run statewide, encourages people who suspect nursing home abuse to report it immediately — not to law enforcement officials or to nursing home regulators at the Department of Human Services but to the Odom & Elliott law firm.

“That’s our message,” partner Bobby Odom told me. But callers who report something that might be criminal are then encouraged to contact legal authorities, he said.

The ad was produced by an out-of-state company and customized for use by Odom & Elliott.

“I don’t do publicity ordinarily, either in the paper or on TV, but I felt this was timely. My firm did,” he said. Recent Congressional hearings into conditions in the nursing home industry prompted Odom & Elliott to get the word out.

“It would be a dream come true if there was not one case in Arkansas against a nursing home,” he said.

Odom, 62, says he remembers well the days when lawyers were not allowed to advertise. But the younger members of his firm persuaded him that the time was ripe.

“I agree with them that to get the message to the people, sometimes this is necessary,” Odom said. “It’s, if anything, a sign of the times.”

Not coincidentally, so are those gigantic verdicts.