Legal Ethics and Marketing

The New Jersey Supreme Court's Committee on Attorney Advertising has issued the latest in a string of ethics opinions imposing limitations on the use of the Internet for client development. Opinion 36, issued January 2, 2006, states that lawyers who pays a flat fee for an online listing and receives an exclusive listing for a county for a particular field of practice "must ensure that the listing or advertisement contains a prominently and unmistakably displayed disclaimer, in a presentation at least equal to the largest and most prominent font and type on the site, declaring that "all attorney listings are a paid attorney advertisement, and do not in any way constitute a referral or endorsement by an approved or authorized lawyer referral service."

Usually ethics opinions are presented as sources of direction that fall short of legal authority. But this opinion states that a lawyer "must" ensure that the advertiser provide this specific disclaimer. Some might conclude that this should be the role of the court itself and, if important enough, the court should change its rule to provide such a requirement.

The Colorado Supreme Court has rules that the Colorado Consumer Protection Act applies to lawyers and held that a law firm client who believes he was strong-armed into a low-ball settlement can sue under the law and seek triple damages from his lawyer. According to an AP article, the lawyer believes the suit is frivolous.

States have come down on different sides of the fence on the applicability of consumer protection acts against lawyers. Some courts conclude that if the law does not specifically state that lawyers are covered, they are not, since lawyers are regulated by the courts and not the legislature under the separation of powers doctrine. Other courts have concluded that lawyers are subject to such statutes in addition to the regulation of the courts. Some of these cases are discussed in "Spamming for Legal Services: A Constitutional Right within a Regulatory Quagmire" 22 John Marshall Journal of Computer & Information Law, 97 (2003).

According to an article in the Guardian, a UK group called Nationwide Accident Services, which specializes in personal injury actions, has developed a word-search puzzle for children. The game involves circling words in a box of jumbled letters. The puzzles have been placed in hospitals and doctors' offices so that kids have something to do while waiting for their appointments. Here's the good part - The words include phrases such as "claim today," "compensation" and "no win, no fee." What's next? Maybe fortune cookie messages.

According to the CBC, a Canadian chapter of Mothers Against Drunk Drivers is disturbed by the advertising of the Impaired Driving Office on behalf of criminal defense lawyers interested in impaired-driving cases. The ads appear on city buses in various Canadian provinces, but have been taken off of the buses in at least one city as a result of the complaints lead by MADD. The issue represents competing policies. Does the advertising give a green light to those who might drink and drive, or does it help people obtain legal counsel when they've been charged?

Can a firm brand itself by using one name, when that name is shared with another firm? That's the issue reported in American Lawyer, as Foley & Lardner seeks to be known simply as "Foley" over the objection of Foley Hoag. The conflict began when Foley & Lardner sought to register a logo with the PTO. Foley Hoag claims the prominent use of Foley will create confusion. Meanwhile Foley & Lardner has the domain name www.foley.com., but www.foley.net looks like it's up for grabs. As this moves to conclusion, you have to wonder if a firm can trademark a letter -- like the big round "O"?

The Connecticut Law Tribune reports on a lawyer suing his former firm because the firm didn't remove his bio from the firm's web site. Robert P. Murphy filed against Del Sole and Del Sole after opening a new practice and registering with various search engines. He learned that he was "widely listed as still being associated with the firm" and claims the firm misrepresented his status by not promptly removing his name. Murphy claims his information was not removed form the firm's site for more than a year. It's hard to tell how much time is reasonable to avoid creating a misrepresentation, but appears obvious that firms need to pay attention to their stale cyberspace information.

Two vastly different professional associations are advancing policies on client development issues: The West Virginia Trial Lawyers Association and the Legal Marketing Association.

Marketing, even the most traditional types, often includes reference to clients or case information. Listing "representative" clients in a directory like Martindale-Hubbell goes back to near the beginning of time. Clearly, web sites have expanded on this theme as firms include not only client names, but details about results. Sometimes the client names are omitted but the results are promoted.

But to what extent is a lawyer obligated to maintain the representation of a client confidential? I have always thought that a lawyer must keep the client's identity secret, even if the representation is public knowledge, unless the client consents to reveal the existence of the representation or outcome of the case. From time to time ethics experts have disagreed with that position, indicating that it is acceptable to reveal a client's name if it is general public knowledge. I never understood why. After posting the question on a listserv for legal ethicists, I've figured it out.

There's a lot of reaction to the Supreme Court of Florida decision to sanction lawyers for their use of Pit Bulls in their advertisements, and it ranges from critical to scathing. That may be expected from lawyers, most of whom now use various client development methods to get business while a few others tend to embrace the First Amendment. Take a look at Carol Elefant's blog, My Shingle, for a dialogue between lawyers on the court's obligation to protect the public and its over-reaching protectionism. All but one of those posting comments is critical of the decision. No one is as critical as David Giacalone, who has a contest to find a symbol for Florida's high court. Contenders include a number of birds - the dodo, the cuckoo and the ostrich. Yikes.

Two Florida lawyers have received a public reprimand from the state's Supreme Court for branding themselves as the Pit Bull lawyers. They used the image of a pit bull as a logo and advertised the telephone number 1-800-Pit-Bull in their TV ads. Stressing the issue of the legal profession's image, the court stated that the logo and phone number "demean all lawyers and thereby harm both the legal profession and the public's trust and confidence in our system of justice."

The court overturned a referee's finding that the ethics rules where unconstitutional as applied to this matter. At the time of the referee's decision, it was reported that the only non-lawyer who complained was a Pit Bull breeder who claimed that the association with lawyers was pulling down the image of the breed. For details about the case, see the excellent post by Tim Chinaris at SunEthics.com, which includes a link to the case itself.