Legal Ethics and Marketing

New Jersey Disclaimer Could be BIG

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 Strong Arm Gets Muscled

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).

Marketing is always ahead of regulation - Always

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.

MADD is Mad at DUI Defense Advertising

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?

Branding or Name Blame?

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"?

A Lawyer's Good Name -- Take it or leave it

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.

Associations Weigh In on Policies

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

]]> According to Lawyers Weekly USA, the West Virginia Trial Lawyers Association has promulgated a voluntary code of conduct governing solicitation, which was passed by the association's board in September. Some of the guidelines appear to be coterminous with ethics rules, e.g. prohibitions against going to the site of tragedy to solicit clients and filing frivolous suits. Others are unique, e.g. not contacting the media for at least 10 day after an event. Although the guidelines are positioned as voluntary, violators could be expelled from the association. Next up, recommendations on lawyer advertising.

On the other hand, the Legal Marketing Association, a national group of about 2,500 law firm marketers and vendors, is considering its first policy recommendation. The policy will encourage the states to adopt the ABA Model Rule provisions governing client development that resulted from the ABA Ethics 2000 initiative. The rules, which are being considered in several states, loosen the definition of "false and misleading," drop the requirement for firms to retain advertising copy for two years and permit lawyers to solicit business from other lawyers in-person. The LMA, however, encourages states to modify Model Rule 8.5, governing choice of laws, before enacting it. The rule currently provides, in part, "A lawyer not admitted to this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction." LMA recommends the words "or offers to provide" be stricken from the rule. As written, the rule subjects lawyers in large firms to the rules of the states where the firms advertise, which is frequently every state.

Name That Client

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.

]]> ABA Model Rule 1.6, which is in effect in many states, says "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph b." Paragraph (b) does not include any exceptions that pertain to this issue. This is no wiggle room under this rule. The fact that the law firm represents the client is the client's confidence. The lawyer has no right to use that information for his or her marketing, without the client's informed consent. "Informed consent" incidentally suggests that a client cannot consent in total at the beginning of the engagement, but must know the details of the marketing usage prior to consenting. Therefore, under ABA Model Rule 1.6, a lawyer cannot list a client in promotional material, even a directory listing, without the client's consent.

However, other states have a variation of this rule. For example, Virginia's Rule 1.6 states, "A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation..."

So, while the Model Rule states have a broad ban on such disclosures, other states, like Virginia appear to permit disclosure unless it is embarrassing or detrimental. In the case of marketing, particularly where the relationship is generally known to the public, it is hard to see where disclosure of the existence of the representation would be embarrassing or detrimental. Hence two different rules, two different results.

Of course, most marketers would ask how it could ever be good business to list a client or case information without asking the client. But that's business and this is ethics.

Are Cute Puppies Okay?

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.

]]> But lawyers aren't the only ones troubled by The Florida Bar v. Pape. The voice of the public, as filtered through newspaper editorials, has shown the decision is not popular in the court of public opinion. The Pantagraph, in Central Illinois, ran an editorial asking if the court would have preferred kittens or teddy bears? "We would agree the ad does nothing to enhance the legal profession, but neither does the Florida Supreme Court's lack of a sense of humor." The St. Petersburg Times was more pointed. It stated the harm in question was the dignity of the legal profession, but the real harm was to the First Amendment. "But the court is kidding only itself if it thinks that censoring the profession's advertising will make lawyers look like pussycats to the people who have felt their claws."

Florida Court Takes a Bite Out of Advertising

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.

New York State Bar Fights Lawyer Advertising with...Advertising

The New York State Bar Association is waging a war against lawyer advertising by -- advertising. As part of a radio campaign to address law related issues, known as the "Beacon of Justice," the commercial begins by asking listners if they "feel bombarded by lawyer advertising." It goes on to state that "billboards and the Yellow Pages don't necessarily provide the information you need."

The commericial is part of an initiative led by bar president Vincent Buzard to address issues of lawyer advertising. In addition to the radio spots, Mr. Buzard has appointed a task force, which has suggested lawyer ads be screened by the state, among other restrictions.

]]> Twenty-plus years ago, bar associations turned to institutional advertising to raise the esteem of lawyers and help people understand the role that lawyers play in society. The campaigns were successful as long as they ran, but had no lasting impact. They were too expensive to sustain and fell by the boards. Both the Illinois State Bar and the ABA have run image campaigns in recent years, but again found them to have too little bang for the buck. But a bar association going after its members who reach clients through the Yellow Pages seems to be unique.

As for the task force, it will be interesting to see what problems it hopes to address and whether it can structure remedies that provide solutions without limiting the ability of law firms, large and small, to effectively reach their markets.

What's a Blawgthink?

Being a newbie blogger, it was more than interesting to attend something called Blawgthink last week. A combination of structured presentations and extended interactive brainstorming, the event was put together by veteran bloggers Dennis Kennedy and Matt Homann

]]> I lead a discussion on the Ethics of Blogging, perhaps the first of its kind. My proposition was, and is, that if the content of a blog is not commercial speech, then the blog is not controlled by the rules that control lawyer advertising. In other words, if nothing within the blog "beckons business" or "proposes a commercial transaction" to use the words of the Supreme Court when discussing commercial speech, then the lawyer who is blogging has the full First Amendment rights to political discourse as anyone. Clearly there are some troubling areas here, but it seems to me that the courts will have a difficult time determining "intent" over "content" and imposing restrictions under a belief that someone is trying to get business when nothing in the content of the message says that they are.

We will have to wait for some future direction on this, but lawyers who are burdened by state rules, such as filing and screening obligations, will have a difficult time blogging if they have no carve-out. Perhaps that carve-out should be based on the First Amendment.

Utah Embraces Many ABA Changes

Add Utah to the still short list of states that have embraced the ABA Model Rules that govern client development. The changes went into effect on November 1st. To see the changes, go here and scroll down to Rules 7.1 through 7.5.

]]> Under Rule 7.1, lawyers should now be able to include testimonials as long as they do not create a material misrepresentation. Also, advertisements are not strictly forbidden from "unsubstantiated comparisons" with other lawyers. The new rule merely requires a lawyer to avoid the impression that an unsubstantiated comparison is factually substantiated. We will have to wait for either case law or ethics opinions to define the scope of these changes, but it is clear the limitations have been relaxed.

Rule 7.2 no longer requires lawyers to keep their advertisements for 2 years, a rule which was little known and probably infrequently honored anyway.

Rule 7.3 explicitly permits lawyers to solicit other lawyers in person.

Rule 7.4 now allows a lawyer to be called a "specialist" as long as it is truthful and does not wrongfully imply that the lawyer is certified as a specialist.

All in all, a pretty good day for law firms that want to get their message out.

Have an Opinion About Lawyer Advertising? The Nevada Bar Wants to Know

Little did I realize there are all sorts of blogs about lawyer advertising. Here's a blog sponsored by the State Bar of Nevada that wants your opinion about it. Although some of the topics on the blog seem to have a bit of an anti-advertising bias, e.g. should it be more strictly regulated, have you been offended by any ads, the most interesting thing, if I'm looking at this the right way, is that no one has replied -- not lawyers, not marketers, and especially not the public.

]]> This is consistent with research done on lawyer advertising 15 years ago. While lawyers often have a dog in the fight, the public just doesn't care. No doubt there are people who have found their lawyer through advertising and believe they were poorly served, just as those who found their lawyer through other ways. But so far, nothing seems to suggest that there is any difference. We have to wonder if the Nevada blog ultimately generates negative comments whether that will serve as a basis for greater restrictions.

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