Sunday • February 4, 2007

Cartoon in Bench and Bar magazine prompts questions about balance and good taste

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UPDATE:

Louisville attorney Michael Stevens has now posted an "op-ed" piece about the same cartoon on The Kentucky Law Review. His piece begins as follows:

"Imagine my surprise when I discovered that my dues to the Kentucky Bar Association were being used, not only to heap insults on a significant segment of our membership -- those of us who represent the injured -- but also to take a pro-business position on tort reform to deprive the citizens in this Commonwealth of their constitutional right to a jury trial for their injury claims."

His piece concludes:

"Now imagine what is going to be done about it.  Better yet, call or write the Board of Governors and tell them that you find such humor inappropriate on the pages of our state bar journal. You can find a list of them here."

ORIGINAL POST:

A fellow Kentucky lawyer has raised questions about a cartoon that appeared in the January 2007 issue of the Kentucky Bar Association's Bench & Bar magazine.

The cartoon depicts a destitute person sitting on a sidewalk with a sign that reads, "WILL SUE FOR FOOD." A passerby comments to her friend, "It's just the effects of tort reform, I suppose."

The destitute person is apparently a personal injury lawyer, not a potential plaintiff in a personal injury lawsuit. He is not suffering from any apparent injuries; in particular, he does not have any bandages or medical appliances. If he did, the cartoon would raise a different set of issues. But it seems from his appearance, his sign, and the comment of the passerby that he is a personal injury lawyer who must now "sue for food" because of "the effects of tort reform."

The cartoon was brought to my attention by a Kentucky personal injury lawyer who found it to be offensive and insulting. He raised questions of balance, good taste and the KBA's role in promoting the image of the profession.

It does seem surprising that the leadership of the Bar would permit a cartoon of that nature to be published on the pages of the state bar journal. After all, the cost of publishing Bench & Bar is borne by the entire membership of the Kentucky Bar, including personal injury attorneys.

Most lawyers have thick skins and a healthy sense of humor. But Bench & Bar is read by other people as well. For example, it's placed on the reading racks in law school libraries, and also finds its way into the hands of newspaper reporters. What message does the cartoon send to a law student who is considering a career in plaintiff's personal injury practice? And what message does it send to the public at large, regarding the organized bar's attitude toward the plaintiff's bar?

But the message it sends to non-lawyers is not the only consideration. Kentucky lawyers who handle personal injury cases need to be confident that the Kentucky Bar Association is their Bar Association, no less than it is the Bar Association of lawyers in large firms who defend personal injury lawsuits. The publication of the subject cartoon hardly instills such confidence in their minds.

It is one thing, of course, for a bar magazine to publish "point/counterpoint" articles about the pros and cons of tort reform, like the two excellent articles that appeared in the October 2006 issue of Bench & Bar. Content of that nature promotes the intelligent discussion of tort reform among members of the bar. But it would seem to be another thing entirely for the official magazine of a mandatory state bar association to include a cartoon that depicts a lawyer as a street person who will "sue for food" because of "the effects of tort reform."

At the very least, it suggests that tort reform would severely impact the financial viability of personal injury practice. That's a dubious proposition, because the general viability of personal injury practice does not depend on earning contingent fees in those occasional and unique cases where the total settlement or judgment would be limited to any significant degree by the tort reform proposals that have received serious consideration in state legislatures.

But the problem doesn't stop there, because the cartoon also suggests that personal injury lawyers are people who would "sue for food" if they had to. In that way, it contributes to the notion that personal injury lawyers encourage their clients to bring lawsuits, and perhaps also to the notion that many of those lawsuits are unfounded. As any lawyer knows, the Rules of Professional Conduct include provisions which are designed to ensure that clients make the ultimate decisions about filing lawsuits [SCR 3.130(1.2)] and that lawyers do not participate in filing frivolous claims [SCR 3.130(3.1)]. 

It seems especially surprising because the leadership of the Kentucky Bar has frequently expressed concern about the need to improve "the image of the profession." Some leaders have also condemned advertisements for legal services which they consider to be "tasteless."

Indeed, it was only three months ago, in the October 2006 issue of Bench & Bar, that KBA President Robert C. Ewald found it necessary to explain that "we cannot regulate good taste" in the field of attorney advertising.

The leadership of the Bar can regulate what appears in Bench & Bar magazine.  Yet here, three month later, we find a cartoon that contributes to a negative image of the profession and also raises legitimate questions about balance and good taste. Someone apparently concluded that the cartoon was timely because it related to the subject matter of the "point/counterpoint" articles that appeared in the October 2006 issue.  But timeliness is clearly not equivalent to appropriateness.

Needless to say, the cartoonist is entitled to his personal opinion about personal injury lawyers. The issue, however, is whether his cartoons (and specifically the one discussed here) are appropriate content for the official publication of a mandatory state bar.

The membership of the KBA Board of Governors includes respected attorneys who handle personal injury cases on the plaintiff's side. For that reason, there is no reason to believe that the leadership of the Bar is actually biased against personal injury lawyers. But that is not the question.  The question is whether Bench & Bar magazine creates a different impression when it publishes a cartoon like the one in question.

Stated another way, one can only wonder how those Board members would feel if one of their law clerks showed them the cartoon in question and asked them whether it fairly represents the attitude of the organization they oversee.