By ROGER M. GRACE
Should members of the State Bar of California be permitted to play-act the role of lawyers on TV courtroom shows, or is that just too close to advertising to be tolerated?
Inasmuch as overt lawyer advertising has been allowed for quite a number of years now, there doesn’t seem to be much question as to the permissibility of round-about advertising. But in 1960, this was a subject of intense controversy.
Participants in the debate included this newspaper and Edgar Allan Jones Jr., a UCLA law professor who presided over ABC’s afternoon show “Day in Court,” on which civil and criminal courtroom proceedings were simulated, with local lawyers arguing the cases.
“Day in Court” and Jones’ other TV courtroom shows (“Traffic Court” and “Accused”) have been spotlighted in recent installments of my nostalgia column, “Reminiscing.” There’s never “nostalgia” over controversies, however; ergo, this recitation of the hullabaloo of four decades past over lawyers playing lawyers on camera appears here.
I can understand Jones’ consternation. The “Prime Directive” guiding his shows was to portray with accuracy what transpired in actual courtrooms. He was an educator who was educating—in this instance, not a single classroom of students, but multitudes.
On Feb. 18, 1960, the Metropolitan News (a forerunner of the Metropolitan News-Enterprise) ran, under the heading of “Editorial,” a denunciation of appearances by lawyers on courtroom Metropolitan News-Enterprise shows. While an “editorial,” by definition, is an expression of opinion by the newspaper, this particular opinion piece actually was a statement by the majority of an outside “editorial board,” comprised of 15 distinguished bar leaders. (The all-male panel included Charles E. Beardsley, Joseph A. Ball, Herman F. Selvin, Frank B. Belcher, J. Stanley Mullin, and future federal judges E. Avery Crary and William P. Gray).
The statement said:
“With the spate of ‘Court’ shows flowing from TV screens today and their blazoned claim to authenticity because ‘real lawyers’ appear in the roles of judge and lawyer, the active participation of the Bar in these travestied representations has been achieved. The impact of these shows on the public—the extent to which they fix the public’s idea of the law and the judicial process—cannot be overestimated….The fact is that the public—a large segment of it, at any rate—believes that these shows, with their inaccuracies and their hyperbole, are realistic and authentic.”
The “editorial” went on to say:
“The implications of the participation of lawyers in such ventures are at least two in number. First, they involve the lawyer as a participant in conduct which brings, or in which there is a strong risk of bringing the courts and the administration of justice into disrespect and reproach. Second, such participation smacks strongly of unethical self-advertising and self laudation on the lawyer’s part contrary to the teachings of [American Bar Assn.] Canon 27.”
That canon, as promulgated in 1908, banned lawyer advertising except in the form of business cards. Gradually, other exceptions were added.
(I find it interesting that the ABA canon banning advertising by lawyers was relied upon rather than California’s own “Thou shalt not advertise” stricture, Rules of Professional Conduct, rule 2, which had been around since 1929. In 1960, there was greater deference in California to ABA canons than now.)
In a direct swipe at “Day in Court,” which had been presented the “Gavel Award” by the ABA at its 1959 annual convention, the article in the Metropolitan News asked: “Why, mirabile dictu [wonderful to relate], did the American Bar Association, at its Miami meeting, present some kind of an award of merit to one of these programs?”
The Los Angeles County Bar Assn.’s Board of Trustees chimed in. On April 22, 1960, it branded lawyers who appear on TV courtroom dramatizations “blundering or bombastic asses” who were “woodenly inept.”
Its opposition to appearances on such shows by lawyers was consistent with a Nov. 4, 1943 formal opinion by its Legal Ethics Committee in response to an inquiry as to whether it was permissible for an attorney to appear on a radio dramatization. The committee adopted the language of a 1936 ABA ethics opinion, which said:
“At the outset we deprecate the simulation of an actual judicial proceeding by a group of lawyers or judges, and especially one having for its primary purpose the advertising of an article of commerce. It is an affront to the dignity of judicial tribunals and should not be tolerated.”
The ABA opinion added that playing a role in such a program “is calculated to lower the esteem of the profession, and to stir up legal strife, and may be considered a subtle method of seeking employment.”
In a 1947 informal opinion, the LACBA committee reiterated that “it is improper for attorneys to take part in the broadcast of a simulated judicial procedure presented for entertainment purposes.”
In 1958, the committee said in an informal opinion: “[I]t is professionally unethical for an attorney to play the role of a Judge or the role of an attorney on a systematically presented television program without reference to the question of the merits of the program and even though the name of the participating attorney is nowhere shown or spoken.”
Particular attention was drawn to “Divorce Court,” a nationally syndicated show that began on KTTV, Channel 11, on Feb. 26, 1958. Los Angeles attorney Voltaire Perkins portrayed the judge. The committee asserted that appearing on that particular program was unethical “in light of the manner, style and content of this program,” which it said strove for sensationalism and was legally inaccurate.
Against this backdrop of consistent opposition to appearances by lawyers in courtroom dramatizations, the County Bar in 1960 urged that the State Bar Board of Governors promulgate a rule of professional conduct to forbid lawyers from appearing on TV court shows.
The State Bar governors, in a unanimous vote taken on Aug. 10, 1960, opted not to adopt such a rule at that time. A committee was appointed to meet with representatives of the television industry and report back on any progress in promoting a commitment to boosted accuracy on the courtroom shows.
Later in August, Selvin, a vocal advocate of a ban, and County Bar President Grant Cooper, appeared on a panel at the American Bar Assn. to explain the LACBA position.
UPI Hollywood correspondent Vernon Scott on Sept. 20, 1960, reported on the flap. He quoted Jones as saying:
“The charges are absolutely without fact or foundation.
“We’ve had some 275 attorneys on the show over the years, and in all cases they appeared anonymously. This does not constitute advertising for their services, nor does it violate professional ethics.
“The lawyers appear on the show for two reasons. First, they recognize that we are trying to blend education with dramatic impact. Secondly, their performances pay them $165 for five hours work.”
Explaining why it was necessary to use actual lawyers, Jones said:
“The advantage of using lawyers is that they provide authentic spontaneity. That is what we are after, authentic portrayal of the administration of justice.
“It is normal for us during the course of the show to actually argue points of law. And during rehearsals we frequently get lathered up over procedures.”
Jones provided his perception of the controversy in a June 2, 1961 article in the “Virginia Law Weekly,” a publication he founded in 1949 while a law student at the University of Virginia. The professor observed that “[i]n what appears to be the final disposition of the matter,” the American Bar Assn. on April 15, 1961 issued Formal Opinion 298 in which it approved appearances of lawyers on televised simulations of court proceedings, declaring:
“Where lawyers appear on commercial programs as actors or performers, whether in the role of judges or lawyers, or otherwise, but are not identified as lawyers, either generally or individually, such participation is not improper.”
The opinion added:
“No lawyer or judge should appear in any program, commercial or otherwise, unless it is made clear that such program is not an actual trial or proceeding but is a dramatization, and unless such program conforms to the proper standard of the bench and bar in their participation in judicial or other proceedings.”
In his article, Jones labelled that opinion “an intelligent response both to the opportunity and to the caution implicit in television courtroom programming.”
As it turned out, that ethics opinion was not the “final disposition of the matter.” In Bates v. State Bar of Arizona (1977) 433 U.S. 350, the U.S. Supreme Court held that attorney advertising is protected by the First Amendment.
The court held back from giving the green light to television advertising, however. It authorized regulation by state bars of attorney advertising, and noted that “the special problems of advertising on the electronic broadcast media will warrant special consideration.”
California proceeded to give wide latitude to attorneys advertising on TV. Acting pursuant to Rules of Professional Conduct, rule 1-400, the State Bar Board of Governors adopted a standard, effective May 27, 1989, which permits a “communication” by an attorney “which contains a dramatization” provided there is “a disclaimer which states ‘this is a dramatization’ or words of similar import.”
Attorneys may now appear on a courtroom dramatization, and need not do so anonymously.
By the way, I am authorized to announce that this newspaper hereby withdraws the opinions expressed in its Feb. 18, 1960 editorial.
Copyright 2003, Metropolitan News Company