The Jack In The Box Poisonings -- Lawyer's Ad: Is He Guilty Of Greed? -- Move Sets Off Storm Of Criticism

Is personal-injury lawyer D. Scott Blair an ambulance-chasing, profiteering, opportunistic vulture because he ran an ad soliciting victims of the E. coli poisonings?

Or is he a valuable public servant, informing and fighting for fair compensation for families who have suffered greatly?

Blair's quarter-page newspaper ad targeting victims of the culinary disaster, which ran in both Seattle daily papers Tuesday, set off a storm of criticism that has left the North Seattle attorney shocked and confused.

The Washington State Trial Lawyers Association (WSTLA), of which Blair is a member, criticized the advertisement in a letter sent to its 3,000 members last week.

In the letter, Halleck Hodgins, president of the lawyers association, called the ad "opportunistic advertising" that "does a great disservice to injury victims and our profession," and called for such advertising to be "condemned by our entire profession."

The ad, says Hodgins, creates an "impression of profiteering" that is likely to be harmful to all victims.

Geez, responds Blair. It's not as though he set up shop at an airport, as some lawyers did in Dallas after a big air disaster, or showed up, business card in hand, at hospitals. In Detroit, a man posed as a Catholic priest at a plane crash site to steer business to a Florida lawyer.

Such "in-person" solicitation is prohibited by the Washington State Bar Association, as are telephone calls to victims soliciting their business - things Blair says he'd never do. But ads such as his, including those that target a particular disaster, meet legal and professional standards.

"That is a question of taste, and taste isn't something we regulate," says Leland Ripley, chief disciplinary counsel with the state bar association.

Blair says WSTLA and others who were offended by his ad don't understand his motives.

"The fact is that I am interested in helping people out," says Blair, who says he has also received harassing phone calls since the ad appeared. "I don't think they know how committed I am to rectifying a rather egregious wrong that I think pervades the beef industry."

Blair says he once had "food poisoning" from a fast-food meal, and his daughter spent three weeks in Children's Hospital with kidney problems.

"I know how those people feel," he says.

But others attribute different, more sinister motives to advertising lawyers, especially those who run their ads while people are still sitting in hospital waiting rooms desperately hoping for good news about their gravely ill children.

After all, some of those clients come in with potential claims that could bring millions of dollars in awards or settlements. A typical personal-injury lawyer signs up for a third of that as a case fee.

Although a typical contract between a client and personal-injury attorney specifies "no recovery, no fee" (meaning that if the lawyer doesn't win, the client pays no fee), the client does owe the costs of conducting the case, such as experts' fees and depositions, whether the lawyer wins or loses the case. In cases Hodgins is familiar with, costs have ranged from $100 to $300,000.

And let's face it, advertising works, says Allan Brecke, a Kennewick lawyer who got "good settlements" for eight victims, including the family of one woman who died, of a 1986 outbreak of E. coli in Walla Walla.

"I'm real prosperous," says Brecke, who has advertised on television - daily on all three networks - and in the telephone book for the past nine years.

He says his ads are "tasteful," eschewing any humor, "sickening stuff" or specific reference to particular disasters.

Blair's ad goes too far, says Brecke, because it is overly aggressive in soliticing business from those who clearly have a claim.

But generally speaking, lawyers who advertise do a service to clients, Brecke believes, especially in the face of aggressive insurance adjusters he says try to persuade people to sign away their rights for a pittance. "The game is played from (the insurance adjusters') side of the board by trying to pay as little as possible to close the claim," says Brecke, who once represented the insurance industry.

While lawyers paint insurance adjusters as tightwads who ambush vulnerable accident victims, insurance adjusters say that's not true.

"We'd have trouble getting to their doorsteps through all the lawyers stacked up there," says Scott Carpenter, executive director of the Washington Insurance Council, a trade association for insurance companies in this state.

Insurance adjusters know they shouldn't try to "squeeze it too much" with clients because it will just make them mad, he says, "and they'd go get a lawyer who would sue the pants off the company."

Carpenter points to a study from 1988 showing, he says, that injured people who had a claim of more than $200 ended up with more money if they didn't hire a lawyer. When a victim hires a lawyer, the insurance company hires a lawyer, he says, "and the two lawyers walk off with most of the money."

Anyone who really needs a lawyer, he counsels, should "shop around."

Advertising is one way for people to do that, argues William Hornsby, staff counsel to the American Bar Association's commission on advertising.

"From the consumer's point of view, I think it has some beneficial consequences," says Hornsby. "They're able to find a lawyer who concentrates on the kind of things they have a need for."

Without advertising, victims resort to the "traditional method" of finding a lawyer: asking a friend or family member.

"Maybe I don't want my husband's golf partner to recommend a lawyer for my breast implants," he says.

There is a big a difference between running an ad in a newspaper or on television, where it reaches readers or viewers who may turn the page or change the channel, and showing up on someone's doorstep, and courts have recognized that, says Hornsby.

In a divided decision in 1977, the U.S. Supreme Court allowed lawyers to advertise, as long as the ad was truthful and not deceptive. The court noted that such advertising would help meet the public's unmet needs, foster greater competence and price control among lawyers through competition, and allow more and different lawyers - including women and minorities - to enter the marketplace, giving consumers a better choice.

Just because the court says something is legal doesn't mean people don't find it disgusting or that it's right, says Robert Aronson, associate dean of the University of Washington School of Law, a specialist in legal ethics.

"At least in terms of appearances, this looks like the typical vulture lawyer who preys on the misfortunes of others."

Hodgins, of WSTLA, says public reaction to such an ad also hurts victims when they go to trial because jurors have a negative image of lawyers to begin with, partly created by the insurance industry.

But one of the most important reasons trial lawyers don't like the ad, Aronson believes, is that it hurts their battle against tort reform and limits on awards.

People who are disgusted with lawyers' actions are more likely to support legislation to cap fees and damages, he says.

Personally, Aronson says, he has no qualms about the content of Blair's ad.

"It's pretty straightforward, it doesn't exaggerate, it doesn't have incendiary language. I don't think there's anything distasteful about the ad itself," he says.

The real problem, he says, is the timing. Generally, people feel there should be "some sense of decency" that allows time for people to get over something before lawyers move in.

Betty Bradley, a Walla Walla woman whose mother died from E. coli poisoning in 1986, agrees.

"At this point they're trying to get their loved ones well," she says, remembering that time in her own life when her 70-year-old mother was in critical condition. Although her family eventually received a settlement, such an ad would have seemed "real crass" and insensitive at the time.

Taking legal action "was the last thing we were thinking about . . . We were thinking `get Mom well.' We had a lot of emotions to deal with."

Dorothy Dolan, whose two girls were stricken in the current E. coli outbreak, is dealing with those emotions right now.

She saw the ad, she says. "I can't even think about it now," she says, as her children, now home from the hospital, interrupt her with their cries of pain. "I have to think about my kids."

Ultimately, says Aronson, the marketplace will decide whether lawyers advertise, and how.

It may be that advertising lawyers turn off victims like car salesmen in pig outfits on late-night TV turn off Aronson.

On the other hand, if five clients with good claims retain Blair, "he'll do it again, and other people are going to do it again."

Blair says several of the dozens who have called him in response to the ad have told him they were glad to see the ad, but will contact him later, when their family member is out of crisis.

WSTLA and others who criticize him underestimate the intelligence of victims of E. coli, he says. "I respect the people who look at that ad to make their own independent judgment," Blair says. "I'm certainly not saying I'm the only lawyer who can handle this case. . . . The bottom line is I'm not forcing anybody to call me."