Law: A question of taste: Could America's reviled 'ambulance-chasing' style of advertising be coming to Britain? Fiona Bawdon reports

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The Independent Online
Arecent trip to America convinced the specialist medical- negligence law firm Osborne Morris Morgan that advertising its services would be a very bad idea.

The senior partner at the Leighton Buzzard-based firm, Tom Osborne, says: 'Lawyers are loathed in the States, partly because of the level of fees they get on contingency, and partly because of their advertising.'

The advertisements produced by US law firms, particularly those on television, are often in the worst taste, he says. One urges: 'It is your right to go bankrupt' rather than pay debts; another assures viewers that if something untoward has happened to them, then someone must be responsible. 'The one I liked the best was: 'If your head hurts, see a doctor. If it still hurts, see a lawyer',' Mr Osborne says. 'The conclusion we have reached is that only bad firms advertise. The visit to the States confirmed that.'

Although a few British firms run television commercials, it is nothing new for solicitors to advertise for clients. A trawl through any local paper will throw up firms advertising for personal injury clients, and one specialist immigration firm has, according to newspaper reports, taken a billboard outside the Home Office's immigration department in Croydon saying: 'No joy? If your visit to the Home Office didn't solve your immigration and nationality problem, maybe we can help.'

But it is the advertisements trying to drum up personal injury work that attract the most opprobrium. Some lawyers are already warning that the expected introduction later this year of conditional fees - Britain's answer to US-style contingency fees - will only serve to heighten the problem. More firms will be encouraged to advertise to tap into this potential pool of clients, they fear.

Keith Miles, the assistant director of the patients' charity Action for Victims of Medical Accidents (AVMA), warns that vulnerable clients may be misled by advertisements that appear to promise 'no win, no fee' when, in most circumstances, the 'costs follow the event' rule will apply.

'We are very worried that people will be taken in by firms apparently offering to take their cases for free,' Mr Miles says. 'Solicitors are notoriously bad at advising clients of what their costs will be. It is something that we come up against time and time again, even under the present arrangements.'

Linda Levison, a partner at the specialist medical-negligence firm Pattison & Brewer, disagrees that conditional fees will lead to a spate of dubious advertising. 'Because firms will only be paid if they are successful, they will want to be very careful about the type of cases they attract,' she says, adding that advertising aimed at a mass market is unlikely to lead to good quality cases.

Ms Levison's firm has, however, already been accused by some of veering too close to American-style advertising. Pattison & Brewer was strongly criticised when it advertised for business in the wake of revelations that patients at the Birmingham Orthopaedic Hospital may have been wrongly diagnosed for cancer. The advertisement, run in the local Birmingham press, was condemned as being in poor taste and met with accusations, both inside and outside the profession, of 'ambulance chasing'.

'We did it to inform people,' Ms Levison says. 'There is still a perception among the public that any solicitor can deal with any sort of case. That is a false impression which needs to be changed.'

She denies the accusations of poor taste and that the blunt headline - 'Cancer' - would have added to patients' distress. As a former cancer patient herself, Ms Levison says it is the disease itself and the diagnosis and treatment - and in the Birmingham cases, the wrong diagnosis and unnecessary treatment - that causes distress, not the word.

While defending her firm's right to advertise, Ms Levison would like to see tighter controls to prevent non-specialist firms from advertising for medical negligence work. She also believes that legal aid should be restricted to firms with demonstrable expertise in this area.

Peter Wiseman of the Birmingham Law Society was one of the leading critics of Pattison & Brewer's actions. He does not dispute the firm's medical-negligence expertise, but believes it should not have run the advertisement.

'In this particular instance, it was a case of solicitors going ahead of the ambulance, as at the time the vast majority of patients still didn't know whether their diagnosis was correct or not,' he says. 'It wasn't clear whether there were any cases to be brought.'

The Birmingham Law Society objected not only to the advertisement's timing and wording, but also to the principle of individual firms advertising for business in the wake of disasters. 'My own view in these cases is that the (national) Law Society should take over the burden of advertising,' he says. The society, however, says it does not have the necessary resources, and points responsibility back to local law societies - a suggestion that is unlikely to be practical, according to Mr Wiseman. 'Most law societies run on a fairly modest scale,' he says.

There does seem to be a consensus that in situations like that in Birmingham, it would be better for a third party, rather than individual firms, to do the advertising. It is a role which, according to Mr Miles, the AVMA could fill apart from its lack of funds.

'AVMA never advertises its services, but whenever we do receive media coverage, we get swamped with cases. If we did have the resources to do it properly, we would be more than happy,' he says.

Even those who, like Mr Wiseman, regret the passing of restrictions on solicitors' advertising believe there is a pressing need for the dissemination of more information to potential clients in the wake of disasters. But he does not suggest that direct advertising for business is generally the best way to go about it. 'You provide information to the public by talking to the media, going on programmes, writing articles to promote help lines,' he says.

Mr Osborne agrees that there are better ways to reach the victims than by advertising. 'I spend a lot of my time marketing by going and talking to people,' he says, adding that there is a fine line between staying within the boundaries of good taste and failing to inform people of their rights.

'Years ago, when I did care proceedings, it never occurred to me that children who had been abused should be making claims to the Criminal Injuries Compensation Board,' he says. Would it really be so unacceptable, he wonders, for someone to run an advertisement saying: 'If you have been abused, come to us and we will submit a claim to the CICB?'

Despite its reservations, Mr Osborne's firm has not altogether given up the idea of advertising. It has even contemplated an anti

advertising campaign.

'We wondered whether we should run an ad on the same page as all the other lawyers, simply saying: 'Only bad lawyers advertise' - but the newspaper probably wouldn't run it,' he says.

(Photograph omitted)

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