In a welcome turn, the Bar has backed off of one of its numerous absurd advertising rules. Lawyers are now allowed to use the word “trust” in our advertising.

The Florida Bar prohibits lawyers from describing the quality of our services. For example, we can’t say we’re great lawyers. I’ve opined a little on that at this I Am Not Legally Allowed To Say I Am the Best Florida Lawyer Blog post.

For some time, the bar prohibited lawyers from using the word trust in advertisments because the bar considered that to describe the quality of a lawyers service. What they forgot is that lawyers are required to be trustworthy.

We are bound by our oath and by the bar’s code of legal ethics to maintain lawyer/client confidentiality. Let’s review the logic of this one: the bar requires us to be trustworthy and then forbids us from telling the public that we’re trustworthy.

I’m glad to see this rule taken off the books.

James Harvey Tipler had earlier pled guilty to solicitation to prostitution in his criminal case. Tipler agreed to let his client, an 18-year-old woman,  reduce her $2,300 fee for her assault case.

Every time he had sex with her, Tipler would reduce his fee $200. Every time she arranged for another girl to have sex with him, Tipler would reduce her fee by $400.

Tipler also altered evidence in the case against him and persuaded a witness to falsify testimony.

As if our reputation wasn’t already bad enough.

Decide for yourself if that is the situation in the following instance. Some will surely say yes, some will surely say no.  Let’s start with the simple rule. In civil proceedings, plaintiffs may not be compensated more than once for the same injury. This is regardless of whether multiple perpetrators caused the damage.

For example, one person is killed by two people. The death would not have occured but for the actions of BOTH people. That is, one perpetrator’s actions alone would not have been enough to cause death. The actions of both perpetrators were necessary to cause death. Therefore, both perpetratrors are culpable for the death.

Now what happens if the victim’s wife sues both perpetrators in civil court and receives $100,000 from Perp 1 to compensate them for the loss of her husband?  Well, depending on the facts of the case, the wife may not be able to find a lawyer willing to represent her in her case against Perp 2.

It all depends on the lawyer’s opinion of what kind of monetary value a jury will place on the husband’s life. If the lawyer thinks a jury will say the husband’s life was worth $1 million, then the lawyer will take the case. However, depending on the lawyer, the lower the value the jury will give to the husband’s life, the less likely any lawyer will agree to represent the wife.

This is because of the one compensation rule. The wife cannot be compensated more than once for the loss of her husband. This means that if the wife sued Perp 2, the case went to trial and a jury said that Perp 2 was liable for the husband’s death and that the husband’s life was worth $100,000, then the wife would not receive any money from Perp 2 and Perp 2 would go unpunished.

For those caught up in the scandal, two approaches to dealing with it have emerged. Many players such as Barry Bonds and Roger Clemens have chosen to outright, adamantly, and repeatedly deny the allegations. Others, exemplified by Alex Rodriguez, have chosen to come clean so to speak and openly discuss their guilt.

I can only speak for myself, but Alex Rodriguez has saved his reputation in my mind by being a man about it, owning up to it and openly discussing his transgressions. I wish him nothing but the best and continued success in the future and I hope he can lead the way to a clean Major League Baseball.

On the other hand, I am completely offended by the likes of Barry Bonds and Roger Clemens who have not chosen the higher road and have attempted at every turn to use lame and unconvincing excuses for why they aren’t guilty. This tactic has turned the tide of public opinion against them. I for one do not wish to see them in the Hall of Fame.

This tactic of owning up to your transgressions and admitting your faults is a powerful influencer of opinion. Confession is one of the foundations of Catholicism for reason and lawyers have begun to catch on.

I participated in a mediation yesterday in a medical malpractice case where the hospital was quite clearly negligent. However, the Florida Legislature passed a law saying that if a medical malpractice victim is not married and does not have children under 25, then no one can bring a wrongful death claim on their behalf. The only legal claim available in that case is for the pain and suffering of the victim, not her relatives.

In our case, the victim only lived for about 20 days past the time she began suffering from the injury the hospital inflicted so the damages that her estate could collect would be limited to the dollar amount that a jury believed would properly represent her pain and suffering for that short period.

The hospital’s defense counsel shrewdly used this to their advantage and indicated that at trial, the hospital would admit negligence. The hospital would “pull an A-Rod.” Not only would this admission soften the jury’s opinion of the hospital, but it would have important legal ramifications as well.

By admitting fault, the hospital would avoid the ill will that Barry Bonds and Roger Clemens have incurred. Perhaps more importantly, that move also would mean that I could not present evidence at trial to prove that the hospital was negligent because that evidence would be rendered unnecessary by their admission.

If a jury could not hear all the horrible things that this hospital did to my client, the jury would be less likely to award a high amount of damages. All the jury would hear about would be the pain and suffering my client endured in those short 20 days that remained in her life.

It was a shrewd move and also one defense lawyers urge doctors to adopt. Studies show that if a doctor simply apologizes for injuries he inflicts on patients, then that doctor is significantly less likely to be sued by that patient.

I agree with these rules. Look at my soon-to-be-demolished website. I do not make such claims there. I agree with the Bar that they can be misleading and harmful to consumers. They can be harmful because they do absolutely nothing to help consumers choose the best lawyer for their situation. This unhelpfulness is illustrated nicely by a scene from the movie Elf starring Will Ferrell. He plays a human who was raised by Santa’s elves in the North Pole. One day he travels to New York and stumbles upon a coffee shop that boasts it sells “The World’s Best Coffee.” He, being innocent and naïve, runs into the shop to congratulate the staff loudly on such a superlative achievement. The shop’s patrons look at him like he’s crazy of course. Everyone know that describing yourself as the best is a meaningless and hollow claim unless the topic is something quantifiable like world’s fastest man in the 100meter dash. So I agree that lawyers should not claim to be the best lawyers. However, I have many problems with the way the Florida Bar enforces its rules. The topic will surface again and again in this blog. In future blogs, I will discuss the more controversial aspects of lawyer advertising. It is for the most part rubbish and we have the Florida Bar’s enforcement division to thank for that. It’s not the rules; it’s the hard-line, heavy-handed, rote, color-by-numbers enforcement of them.