Attorney advertising is vital to law firm success and profitability, but marketing continues to pose legal ethics issues that must be addressed at every turn.
In the decades since the Supreme Court issued its 1977 opinion of Bates v. State Bar of Arizona, which legalized attorney advertising, states have become more lenient about lawyer marketing, while the courts often strike down onerous limitations.
When it comes to the formal limitations on advertising, “All the restrictions are eroding,” says Thomas Spahn, counsel at McGuireWoods, who has authored several books on attorney ethics.
In the meantime, there is probably more variance between states on ethics rules for attorney advertising than there is on any other issue, according to Spahn.
And this is hurting consumers on a national scale, some experts say.
But until this is resolved, attorneys contemplating new advertising should consult their state bar association rules and protocols, Spahn says.
[Top Marketing Strategies for Law Firms]
Philosophical Stumbling Blocks to Attorney Advertising Remain
Even as the rules fall, there remains a philosophical tension relating to attorney advertising.
Many lawyers still hold the view that advertising is unseemly. On one hand, there is a concern that legal advertising may target those most in need of counsel but least able to evaluate an attorney’s claims.
On the other hand, legal advertising can give people information they wouldn’t otherwise learn, says Elizabeth Tippett, an associate professor at the University of Oregon School of Law who studies how legal advertising influences consumer behavior.
[10 Marketing Tips for Criminal Defense Lawyers]
Attorney Advertising Cannot Be False or Misleading, Even When It’s the Truth
All states prohibit attorneys from using false and misleading content in advertising. Further, this goes beyond outright falsehoods. It also includes omissions of facts and debatable opinions.
States frequently prohibit attorneys from describing themselves as “the best” or using other superlatives to describe their work, unless the term is related to an independent peer assessment such as U.S. News’ list of Best Lawyers. In some jurisdictions, attorneys can say they “specialize” in a practice but cannot say they are “specialists” unless they have a certification in the field.
Even true statements can be prohibited if they mislead someone. For example, if a law firm accurately states it had a $1 million victory in court, but implies future clients will receive similar results, that would be a violation, Spahn explains.
What Does ‘Advertising’ Mean?
Generally speaking, attorney advertising is any way lawyers might communicate to the public about the services they provide.
Advertising includes commercials, brochures, business cards and stationery. Depending on the state, it might include a firm’s website, newsletters and more.
Some states, such as Florida, Nevada and Texas, require attorneys to submit almost all advertising to the bar for review. However, even these states have exceptions to the rule.
Advertising Is (Mostly) Okay While Solicitation Is (Mostly) Forbidden
While attorney advertising is generally allowed, solicitation is usually forbidden.
Solicitation is a communication directed to an individual with whom the attorney doesn’t already have a personal or professional relationship.
But the line between advertising and solicitation is often blurry. The difference is based on how intrusive the communication is, Spahn says.
For example, attorneys could probably send everyone in a zip code informational letters about their rights if they are arrested. But for periods of time, states can prevent attorneys from sending letters to accident victims about their rights to sue because the victims are presumptively too traumatized to make an informed decision about attorney representation.
Things get even fuzzier when technology is involved. When an attorney pitches work via text or in an online chat, that is considered advertising since someone can easily ignore the attorney’s comment. However, the difference between solicitation and advertising may, at some point, hinge on whether or not an attorney’s camera was off during a Zoom.
Paying for Advertising Is (Probably) OK, Referral Fees and Fee Splitting Are Not
Marketing strategies typical in other fields — such as paying percentages tied to referrals — pose ethical dilemmas for attorneys.
While attorneys can pay flat fees for advertising, paying a marketer based on the advertising’s success could be an unlawful fee split, particularly if the marketers are nonlawyers.
Attorneys can pay online directories if it’s the internet equivalent of a phonebook listing, but attorneys shouldn’t pay directories to match clients with them or to recommend the firm. That could be a prohibited referral fee.
Attorney Contact Information: A New Challenge in an Era of Remote Work
States often require that any attorney advertising includes the address of the firm’s bona fide office, where the attorneys work on a regular basis. And it can be considered false advertising if the firm’s contact information on a website or stationary is a P.O. Box, a communal workspace or an answering service.
Solo practitioners and small firms need to be aware that, even as they satisfy other ethics rules regarding work in a remote environment (e.g. preserving client records), their virtual law firm could still run them afoul of this advertising rule.
Mass Tort Claim Advertising: How New Regulation Could Change the Field
While the trend has been to reduce legal marketing restrictions, there is a call to increase regulation of ads relating to drug and medical technology mass tort litigation. Attorney advertising relating to drug injury claims is a $114 million-a-year business. Between 2015 and 2022, there were more than 370,000 television commercials for just one drug injury mass tort — linking the use of talcum powder and cancer.
Tippett, her colleague, Jesse King, and others have concluded these ads impact consumers — sometimes to catastrophic effect. After seeing commercials about the drug lawsuits, a few patients have died because they discontinued use of prescriptions.
In light of these findings, a handful of states are regulating drug injury advertisements.
However, Tippett and King discovered that the majority of advertisements were run by sophisticated marketers, not lawyers, so rules regulating attorneys didn’t apply. When law firms did run ads, they acted as intake specialists who forwarded clients to other firms and rarely represented anyone in court.
According to Tippett, the mass tort ads illuminate shortcomings of ethics-based regulation of attorney advertising. The myriad of different state regulations make it difficult to police national marketing efforts, and state bars don’t have the expertise or capacity to handle the issue. And not all of the bad actors are lawyers.
For her part, Tippett doesn’t think there’s anything inherently wrong with law firms specializing in legal marketing. But transparency, oversight and regulation are key, and they should be led on a national level by an agency such as the Federal Trade Commission, with a mission of protecting consumers, she says.
“You can’t only regulate by counting on the legal ethics rules,” Tippett says.
More from U.S. News
What to Know About Diversity and Inclusion at Law Firms
How Law Firms Are Using Artificial Intelligence in Their Practices
How to Navigate Work-Life Balance at a Law Firm
How Lawyers Can Navigate the Ethical Minefield of Legal Advertising originally appeared on usnews.com
