2020 is gearing up to be a good year for law firms. Industry revenue growth projections1 mean that many (smart) firms will capitalize on additional revenue to bolster their growth, allocating more funds to marketing. On average, law firms spend 2% of gross revenues2 to market themselves.
While this is good news, there are many pitfalls to avoid. The biggest? Violating attorney advertising ethics rules.
While complaints about law firms’ marketing practices are rarely brought by clients — but rather by competing attorneys or bar associations themselves — it’s never a good idea for your marketing materials to result in sanctions. Not only will you be subject to the embarrassment of a complaint or disciplinary investigation, but you’ll also face the added expense and hassle of redoing marketing materials found in violation of the rules.
Constantly changing, disparate rules
Unfortunately, there isn’t one set of rules. While they are all based on (but not identical to) the American Bar Association’s (ABA) Model Rules of Professional Conduct3, the rules vary state by state and are frequently updated.
The ABA, for example, “modernized” the rules in 20184. Last August, a New Jersey ethics panel ruled in favor of a change to allow firms to purchase a keyword of a competitor’s name5 so that a Google search of the name shows their own firm website as well as the competitor’s. But that will likely only be valid for New Jersey law firms, and nobody else, unless other state bars follow suit.
The rules are also frequently challenged by law firms. This month, a Salt Lake City law firm sued6 bar officials in nine states over their ban of the use of trade names for law firms.
So how are law firms and their lawyers supposed to keep up? The key is to understand the basic premises that lie at the heart of the marketing ethics rules, and let that guide you.
7 questions to ask to avoid ethics violations
While there’s no substitute for closely reading and adhering to the rules in each state where a law firm practices or is seeking clients, there are a few basic principles that all law firms should understand when marketing their firms.
Here are seven questions you can ask each time you create marketing collateral, website copy, advertisements and more:
1: Does it contain false or misleading information?
The prohibition against false or misleading advertisements is the cornerstone of rules in every state. Of course you shouldn’t lie or communicate false information in your marketing content, but it’s also important to avoid ambiguity as well.
According to the ABA’s Model Rules and the rules of nearly every state: “A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”
One common example is language related to contingency fees. Let’s say a firm’s ad states something to the effect of “no recovery, no fee,” but the firm then charges the client for related costs to the case regardless of outcome. While the ad may have been technically true, this is often misleading for potential clients since most do not distinguish between “fees” and “costs” and therefore may assume they will have no expense whatsoever.
In some states, such as Texas and Pennsylvania, marketing content related to contingency fee arrangements must include a disclaimer that clients may still be responsible for other costs related to the lawsuit. It’s even stricter in Ohio, where lawyers cannot use any language to describe fees that imply a special deal or discount, such as “bargain,” “lowest” or “cut-rate.” Some states provide exceptions to this, however, allowing statements that can’t be “factually supported” as long as they are not direct comparisons and don’t promise results.
Other examples of misleading language may include:
A sole practitioner using the name “Jane Doe & Associates” when there are no associates
Referring to a firm as “The Law Offices of John Doe” when Mr. Doe has only one office
Including a map or globe implying the geographic scope of services beyond the firm’s actual reach
A firm misrepresenting the racial or gender diversity7 of its members with photos that do not accurately reflect reality, for example, by selectively including or excluding firm members from group photos
2: Does it compare our services to other firms?
Several states prohibit statements that directly or indirectly convey the idea that your firm’s services are superior to those of other firms. Common “red flag” superlative words include best, better, cheapest, smartest and top.
The idea is that such unsubstantiated claims can be misleading to a reasonable person. Some states allow for comparative language if it can be backed up by verifiable data and a disclaimer is included, but you’re often better off playing it safe and avoiding such language altogether.
Several states have adopted current ABA Model Rule 7.18, generally permitting some superlatives such as leading, prominent and go-to. Essentially, you’re placing your firm within a wider group and not singling it out as the absolute best. That said, it’s wise to check the applicable state bar rules to be safe.
3: Does it contain stock images?
Stock images are often used on law firm websites and in marketing collateral, but you may run into issues if you don’t use them properly. The two most common mistakes when it comes to stock images are:
Using copyrighted photos without permission
It should go without saying, but don’t use any photographs without the copyright owner’s consent. Copyright law allows for statutory damages for registered works, and big photograph licensors such as Getty Images register all their photos. Don’t get sued for using an unlicensed photo without permission. Websites like Shutterstock and iStock by Getty Images provide images that you can license at a cost. Other sites like Unsplash and Pexels offer stock images at no cost, but their selection isn’t as wide as the paid options.
Using models or actors to portray lawyers or clients without a disclaimer
If a photo depicts people who aren’t actually attorneys or clients, many states (such as Florida, Georgia and Texas) require a disclaimer stating it’s an actor portrayal. Several states also specify the type and size of pictures that may be used, or the size of print required for disclaimers. In fact, some states even restrict the use of these photos altogether, which could include outdated pictures of attorneys who are no longer with the firm.
4: Does it imply a guaranteed outcome?
Many states prohibit statements that can give a potential client an unjustified expectation about the results the lawyer can achieve. Avoid using phrases that suggest guaranteed outcomes, such as:
“Facing charges? We can get them dropped.”
“We’ll save your medical practice and get you back to work.”
“If your company is facing litigation, our attorneys will resolve it quickly and easily.”
That said, there are acceptable variations that can express similar sentiments without being misleading. For example, you can explain the legal process objectively (“Our lawyers will protect your rights” or “We defend intellectual property for clients across the country”).
Also, aspirational statements are generally allowed, such as “Our team is dedicated to achieving a favorable resolution to your dispute” (versus “Our team will achieve a favorable resolution for your dispute”). In general, it’s best to avoid any language that explicitly predicts success.
5: Does it cite a past settlement amount?
To avoid being misleading and suggesting an unjustified expectation, it’s often best not to mention past settlement amounts in your marketing. Of course, the regulations surrounding this vary by state. For example, section 7.02 of the Texas Disciplinary Rules of Professional Conduct9 states, in part:
A lawyer shall not make or sponsor a false or misleading communication about the qualifications or the services of any lawyer or firm. A communication is false or misleading if it:
(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(2) contains any reference in a public media advertisement to past successes or results obtained unless
(i) the communicating lawyer or member of the law firm served as lead counsel in the matter giving rise to the recovery, or was primarily responsible for the settlement or verdict,
(ii) the amount involved was actually received by the client,
(iii) the reference is accompanied by adequate information regarding the nature of the case or matter and the damages or injuries sustained by the client, and
(iv) if the gross amount received is stated, the attorney’s fees and litigation expenses withheld from the amount are stated as well [...]
These rules recently changed10 in Florida, where Rule 4-7.13(b)(2) of the Handbook on Lawyer Advertising & Solicitation11 states:
Information regarding past results must be factually verifiable and cannot omit facts that would make the results misleading under Rules 4-7.13(b)(2) and 4-7.14.
Comment 11 to Rule 7.1 of the New York Rules of Professional Conduct12 states:
Lawyer advertising may include statements that are reasonably likely to create an expectation about results the lawyer can achieve, statements that compare the lawyer’s services with the services of other lawyers, or statements describing or characterizing the quality of the lawyer’s or law firm’s services, only if they can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated and are accompanied by the following disclaimer: “Prior results do not guarantee a similar outcome.”
Accordingly, if true and accompanied by the disclaimer, a lawyer or law firm could advertise “Our firm won 10 jury verdicts over $1,000,000 in the last five years,” “We have more patent lawyers than any other firm in X county,” or “I have been practicing in the area of divorce law for more than 10 years.”
Even true factual statements may be misleading if presented out of the context of additional information needed to properly understand and evaluate the statements. For example, a truthful statement by a lawyer that the lawyer’s average jury verdict for a given year was $100,000 may be misleading if that average was based on a large number of very small verdicts and one $10,000,000 verdict.
Likewise, advertising that truthfully recites judgment amounts would be misleading if the lawyer failed to disclose that the judgments described were overturned on appeal or were obtained by default.
Always remember to check with your state ethics rules, and when in doubt, err on the side of caution.
6: Does it claim special competence or expertise in a legal area?
Of course, a lawyer or firm can say they practice in a particular field of law, but lawyers can run afoul of the rules when they claim to have special competence or experience in a particular area.
Terms like “expert,” “expertise,” “specialist” and “specialized” are prohibited in some states unless a lawyer is certified by the Board of Legal Specialization in their state or has some other type of permissible certification, as defined by the state rules.
Websites also can’t make general statements that an entire law firm is board certified, since individual attorneys receive certification, not firms. Again, it’s important to double-check your particular state rules.
7: Does it contain the proper disclaimers?
A few states require disclaimers or notices regardless of the content of the message.
For example, New York Rule 7.1(f) requires lawyers to include the phrase “Attorney Advertising” on the home page of their websites and in certain other media. In Missouri (Rule 4-7.2(f))13, legal advertising materials must contain a “conspicuously” placed statement that “the choice of a lawyer is an important decision and should not be based solely upon advertisements.”
Of course, other disclaimers may also be necessary to elaborate on any mention of a past settlement amount, client liability for costs, board certifications (when applicable) and more. Always consult the state rules and stay current with legal ethics in your jurisdiction(s) to ensure your firm remains in compliance.
Complying with bar rules doesn't have to be daunting or complicated. By understanding the basic premises behind them, and how states generally view particular issues, you can comply while still achieving your marketing goals and driving more revenue in 2020.
Michelle Calcote King is the principal and president of Reputation Ink, a B2B and professional services marketing agency that helps corporate law firms of all sizes grow through expertise-driven marketing and PR. To learn more, visit rep-ink.com or email firstname.lastname@example.org.
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American Bar Association Model Rules of Professional Conduct
ABA Model Rules on lawyer advertising to be modernized
N.J. Ethics Panel Tackles Lawyer Ads Using Competitors’ Names
Law firm calling itself LawHQ sues 9 states for banning law firm trade names
Firm uses minorities as 'diversity props' to impress clients, suit alleges
Rule 7.1: Communications Concerning a Lawyer's Services
Texas Disciplinary Rules of Professional Conduct
Florida Bar restrictions on lawyer ads which cite past results is struck down by federal court
Handbook on Lawyer Advertising and Solicitation, The Florida Bar, Standing Committee on Advertising, Eleventh Edition, 2018
New York Rules of Professional Conduct
Rules Governing the Missouri Bar and the Judiciary - Rules of Professional Conduct, Topic: Information About Legal Services - Advertising
This article was originally published by Law360.