Monopolizing misfortune: a story of stratification in the personal injury bar

• Pages: 213-245
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: Kathryn Birks Harvey

Monopolizing Misfortune: A Story of Stratif‌ication

in the Personal Injury Bar

KATHRYN BIRKS HARVEY*

ABSTRACT

The legal profession has long viewed personal injury law as the profession’s

most ethically dubious f‌ield. In particular, the profession has expressed concern

about personal injury attorneys’ perceived tendencies to solicit clients in objec-

tionable ways. This Article explores the profession’s attempt to solve this perceived

problem through state regulation of personal injury attorneys’ advertising tactics.

Specif‌ically, it examines the development and imposition of these regulations in

Florida and Kentucky, two of the f‌irst states to implement these rules in the late

1980s and 1990s. In attempting to solve one ethical problem, the profession cre-

ated another, by giving control of the regulations’ creation to attorneys who often

had a vested interest in which personal injury attorneys would succeed.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

I. THE LEGAL PROFESSION, ATTORNEY ADVERTISING, AND THE

SUPREME COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

A. EARLY HISTORY OF DISCRIMINATION IN THE

PROFESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

B. BATES V. STATE BAR OF ARIZONA. . . . . . . . . . . . . . . . . . 220

C. SHAPERO V. KENTUCKY BAR ASSOCIATION: THE PATH

TO WENT FOR IT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

* PhD, Northwestern University; JD, Vanderbilt Law School. This article has benef‌ited from numerous

people in various roles, including, but not limited to, Erin Delaney, Kevin Boyle, Joanna Grisinger, Ajay

Mehrotra, Peter DeCola, Tom Gaylord, Shai Karp, and Warren Snead; members of weekly interdisciplinary

writing groups, including Heather Grimm, Deisi Cuate, Rebekah Bryer, Grace Bellinger, Tiffany Christian, and

Emily Masincup; members of the American Political Development student writing group; members of the

Americanist Dissertators’ Workshop; workshops through the Rural Reconciliation Project, Midwest Law and

Society Retreat, American Society for Legal History Summer Research Workshop, Association of American

Law Schools, Professional Responsibility Junior Scholars Early Idea Workshop, and the University of Chicago

History of Capitalism Workshop; and Northwestern University Pritzker School of Law. Finally, I would like to

thank the editorial board of the Georgetown Journal of Legal Ethics. © 2025, Kathryn Birks Harvey.

213

II. FLORIDA’S REACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

A. ATTORNEYS TEST THE LIMITS . . . . . . . . . . . . . . . . . . . . . 223

B. COMPILING EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 226

III. THE RIGHT KIND OF PERSONAL INJURY ATTORNEY . . . . . . . . 229

A. PERCEPTION AND IMAGE . . . . . . . . . . . . . . . . . . . . . . . . . 229

B. THE ESTABLISHMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 230

IV. THE SUPREME COURT’S RESPONSE . . . . . . . . . . . . . . . . . . . . . 233

A. LOWER COURTS WEIGH IN. . . . . . . . . . . . . . . . . . . . . . . . 233

B. COMMERCIAL SPEECH AND COMPETITION . . . . . . . . . . . 235

V. KENTUCKY’S TURN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240

A. OFFENSIVE TACTICS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240

B. KENTUCKY PLAINTIFFS’ ATTORNEYS POWERFUL

INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244

INTRODUCTION

The history of personal injury law is def‌ined by discriminatory and elitist hiring

practices. At the beginning of the nineteenth century, an increasing number of

immigrants and f‌irst-generation Americans entered the f‌ield. At the same time,

the newly formed American Bar Association was concerned with excluding

Blacks, women, Jews, and other minority groups from practicing law. Rejected

from f‌irm employment, those with means opened their own personal injury law

practices.

1

The personal injury bar sought to distance itself from the “ambulance chaser”

trope by focusing on professionalization, cooperation, and education. It went as

far as instituting its own code of ethics, claiming to be more stringent than that of

the ABA’s. In effect, these rules preserved the industry’s elitist structure by pun-

ishing the solicitation tactics of newly admitted lawyers while also enshrining

“old guard behavior as the industry standard.

”

My work explores the development of regulations in personal injury law

through archival research on how particular states restricted the boundaries of

1. Peter Karsten, Enabling the Poor to Have Their Day in Court: The Sanctioning of Contingency Fee

Contracts, A History to 1940, 47 DEPAUL L. REV. 231, 257 (1998).

214 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 38:213

permissible regulation. It shows how these efforts prompted the Supreme Court

to change its understanding of what is and is not considered permissible regula-

tion of attorney commercial speech. As the Court’s thinking evolved, states con-

tinued to clamp down on solicitation, making it harder for certain lawyers to f‌ind

clients and making it possible for powerful personal injury attorneys to shape the

regulations in their favor.

This article builds on attorney commercial speech scholarship, as well as regu-

lation of the legal profession. But it takes an important new direction by exploring

how the profession’s overall concern with public perception has inf‌luenced its

regulation of personal injury attorneys. In particular, I focus on the profession’s

attempt to preserve its reputation at the consumer’s expense. Some articles argue

that the Court’s decision to allow attorney advertising was a net positive.

2

Others

look at how attorney advertising has impacted the public’s perception of the pro-

fession, generally arguing that the profession blames attorney advertising for its

poor public image.

3

None of these articles, however, analyze the effects of adver-

tising reforms and state regulations aimed at controlling attorney behavior.

My archival research into the profession’s exclusionary principles and concern

with its public image, both during the Progressive Era and into the twentieth cen-

tury, demonstrates a spirit of anti-competition and overall suppression of personal

injury legal services. I demonstrate this effect through two case studies in

Kentucky and Florida. These states were chosen for their tag-team approach in

regulating attorney advertising and solicitation, as well as their restrictive disci-

plinary rules, which eventually became models for the rest of the country.

Historical documents, including legislative testimony, bar journals, and internal

communications, reveal that elites in the personal injury bar were mainly con-

cerned about losing business, rather than helping facilitate access to the court

system.

This Article proceeds in f‌ive substantive parts. Part I gives a brief history of the

personal injury bar, its concern with image and approach to advertising and solic-

itation. It also highlights Supreme Court precedent from 1977 to 1989, demon-

strating the Court’s increasing comfort with attorney advertising. Part II

highlights Florida’s reaction to the beginning of attorney advertising. Part III dis-

cusses the bifurcation of the personal injury bar and how certain segments

opposed advertising at the expense of other personal injury attorneys. Part IV

then outlines the 1995 Supreme Court case Florida Bar v. Went For It and

2. See generally Tiffany S. Meyer & Robert E. Smith, Attorney Advertising: Bates and a Beginning, 20

ARIZ. L. REV. 427 (1978); Gerry Singsen, Competition in Legal Services, 2 GEO. J. LEGAL ETHICS 21 (1988);

Terry Calvani, James Langenfeld & Gordon Shuford, Attorney Advertising and Competition at the Bar, 41

VAND. L. REV. 761 (1988).

3. See generally William E. Hornsby, Jr. & Kurt Schimmel, Regulating Lawyer Advertising: Public Images

and the Irresistible Aristotelian Impulse, 9 GEO. J. LEGAL ETHICS 325 (1996); Leonard E. Gross, The Public

Hates Lawyers: Why Should We Care?, 29 SETON HALL L. REV. 1405 (1999); Rodney A. Smolla, Lawyer

Advertising and the Dignity of the Profession, 59 ARK. L. REV. 437 (2006).

2025] MONOPOLIZING MISFORTUNE 215