Crash of Flight 5191

Law firms' ads don't comply with bar rules

FRANKFORT - Three ads in yesterday's Lexington Herald-Leader from lawyers trying to contact family members of the 49 people killed in Sunday's plane crash failed to comply with state advertising rules for lawyers.

Two of the ads were pulled from today's paper by the law firms, and the third was pulled by the Herald-Leader after the law firm failed to respond to an inquiry from the newspaper, said Publisher Tim Kelly.

Bruce Davis, executive director of the Kentucky Bar Association, said the KBA's nine-member advertising commission voted yesterday that the ads are in "non-compliance" with state rules for lawyers.

Kelly said the newspaper was "not enforcing KBA regulations" by pulling the third ad. "We are letting the law firm know they have been found in violation to see what they want to do about it," he said. "We have not heard back from them."

Attorney General Greg Stumbo said he referred to the bar association and the U.S. Attorney's Office yesterday a dozen inquiries from people concerned about the legality of the ads.

The media have the legal right to run such ads, Stumbo said, but he finds them "rather tasteless" and believes they "call into question both state and federal law."

Stumbo warned the legal community earlier this week that a 1996 federal law bars unsolicited communication with victims' families for 45 days after their loss. It imposes a $1,000-a-day fine.

Public reaction to the ads was generally critical, and other media outlets were divided over whether they would publish or broadcast similar ads.

Debi Chalik, whose Lexington law firm of Chalik and Chalik canceled its ad in today's Herald-Leader, said in a written statement that her goal in running an ad was "not to hurt the victims and their families but only to offer her assistance."

Chris Martin, general sales manager for WKYT-TV Channel 27 in Lexington, said the station had been contacted by two law firms who wanted to run commercials related to the crash.

"We have chosen not to accept any advertising that specifically targets the families affected by Flight 5191," Martin said. He declined further comment.

WLEX-TV Channel 18 and WTVQ-TV Channel 36 did not return messages seeking comment about whether they would accept similar ads.

Anna Stipp, vice president for advertising for The Courier-Journal, said she did not know whether the Louisville newspaper had been approached by law firms, but the newspaper would publish any such ads if they met the legal criteria.

"We don't make judgment calls on the content of an ad if it is within legal standards," Stipp said.

Dave Kabakoff, market manager for five local Cumulus Broadcasting radio stations, said he has not been contacted by advertisers and hopes he isn't in the future because the ads are "offensive."

"The bodies haven't been released to the families yet," he said. "I don't deny the attorneys the right to do business. I just think it was an unfortunate timing issue."

Ferrell Wellman, host of Clear Channel Communications' WLAP radio talk show "Sound Off," said he got 16 phone calls and 20 e-mails in 21/2 hours yesterday about the ads. "All but one was negative," he said.

"I think it's unfortunate that the Herald-Leader, which has had reporters in the field covering this disaster so well, will now leave a bad taste in people's mouths because of the ads," the radio show host said.

Clear Channel, which has seven radio stations in Lexington, did not return a message seeking comment.

Davis, the bar association official, said lawyer ads must be submitted for review at the time of publication, but none of the three in the Herald-Leader had been submitted.

He said one of the ads violated the rules by mentioning expertise in a special area of law and another appeared to be a message to family members

"In my opinion, they all were in totally bad taste, but we can't regulate bad taste," Davis said.

Penalties for violating the rules range from private reprimands to suspension of practicing law, he said. If a firm does get a client from such ads, it might have to give up its fee.

He also said law firms that do not have a Kentucky presence -- such as an address or phone number -- could be in violation of the rules.

Kelly, the Herald-Leader publisher, said the ads arrived unsolicited on Tuesday. He said the newspaper consulted its legal counsel, contacted the Kentucky Bar Association and the Kentucky Press Association, as well as other newspaper publishers.

"We were advised not to edit the ads," Kelly said.

Kelly noted the federal prohibition on direct contact with victims' families for 45 days, but he said it does not bar advertising.

The newspaper "generally accepts all advertisements representing legal businesses or legal products," he said. The three ads meet that guideline, Kelly said, but the paper will not put the ads next to stories about the crash.

Kelly said the Herald-Leader announced earlier in the week that payments for family-placed obituaries of victims will go to a special United Way fund for family members.

Steve Downey, president of the 1,400-member Kentucky Trial Attorneys Association, said "the timing (of the ads) is offensive.

"Yes, ads are protected by free speech," he continued, "but these should not have run. ... This kind of conduct gives lawyers and newspapers a black eye."

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