While the courts have yet to rule, the answer seems clear: "Malpractice" is not a concept that works in the advertising world, and for the courts to impose it would be a mistake of large proportions.
This isn't to say advertising agencies have no legal obligations to their clients. They do. When their responsibilities are clear, such as for the careful stewardship of millions of dollars in client media budgets, perhaps lawyers and judges can reasonably determine when those obligations have not been met. But on the cloudier issue of whether clients can hold agencies legally responsible for advertising that doesn't work, or for somehow mishandling the creative process, legal standards of malpractice seem to have little to offer.
There is already a remedy that holds agencies accountable for advertising that doesn't work. Advertisers fire the agency, and that's that.
Agencies can and do botch the handling of accounts. Just for Feet's version of how its "Kenya" Super Bowl spot came about, prepared to buttress its malpractice lawsuit, paints the company as the victim of a helter-skelter agency creative process. The agency, Saatchi & Saatchi Business Communications, Rochester, N.Y., naturally has a different view. "Kenya," which showed a barefoot African runner being captured by hunters, drugged and forced to wear shoes from Just for Feet, became snarled in controversy over whether it was or was not racially insensitve and apparently did little to help business. Other problems later swamped Just for Feet, which filed for bankruptcy last November and last month announced plans to liquidate.
Some advertising flops; some does so spectacularly. When ad agencies today agree to peg their pay to results, they agree to share the risks inherent in advertising -- not guarantee success. To allow "malpractice" claims against agencies would deny marketers what they want most: truly creative, often risk-taking ideas. It's too high a price to pay.