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Make Sure Your Legal Messaging is Ethical

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Advertising rules govern what you can and cannot say.

In the wake of COVID-19, it will be more important than ever for law firms to make sure their marketing communications are clear, direct and ethical.

Although nobody is quite sure what to expect in coming months, the challenges to the legal system are sure to be enormous. Courts and other public offices will reopen after long-term closures. New laws are on the books, new programs are providing relief, and financial benefits are available for millions of individuals and small businesses.

As a result, waves of consumers will be seeking legal help, and smart lawyers will craft their messaging accordingly.

“New technologies, expanding social media, and targeted advertising have permanently changed modern communications,” write Kim A. Perret and Nancy Myrland for Attorney at Law Magazine. “Advertisements that may once have had limited geographical reach can today be seen by almost anyone, anywhere in the world. Even the most sophisticated and savvy consumers depend on law firms to deliver outreach that is truthful, transparent and — most of all — informative.”

When you have professional liability insurance through Alta Pro Insurance Services, you’ve got a valuable partner in anxious and uncertain times. Here’s how to join.

The Ethics of Advertising: A Brief Refresher
Each state has its own Rules of Professional Conduct (usually Rule 7.1 and following) that govern how lawyers solicit clients and market their services. They share the same general parameters, but the specifics vary from state to state.

Step one, then, is to know and understand your state’s ethics rules on advertising, marketing and solicitation.

Advertise services you can actually provide. This might sound obvious. But lawyers have been sued for promising what they couldn’t deliver – or at least couldn’t deliver competently. For example, they may have held themselves out as a litigation firm when in fact they had never tried a case to conclusion. Or they touted bankruptcy expertise without justification. Promote areas in which you are proficient right now – not areas you want to expand into.

The devil is in the details. Direct mail solicitation is allowed under Rule 7.3 of the Model Rules of Professional Conduct. But states have different regulations on how it must be done. What does your state say about disclosures that must appear on the envelope? What about font size? Know your state’s rules and follow them.

Describe your location – including venue – on your website. Websites have a worldwide audience. The odds are slim that you’ll be sued for malpractice in a foreign country, but claims have been brought for failing to identify your firm’s venue. Putting your address on the site is insufficient. Clearly identify the venue that applies to your practice, work product and site information.

Use disclaimers. Identify the limited purpose of the materials on your website and in your advertising. Make it clear that the information alone doesn’t create an attorney-client relationship. Explain what is required before a relationship arises, such as a signed fee agreement and engagement letter.

Describe what you can and can’t do. Don’t use small print or legalese. Be clear and upfront. If you only handle certain cases, say so. If you only practice in one state, say so. You can always help potential clients find a good lawyer in another state. You might even be able to earn a fee in the process. Just don’t hide the ball by leading a prospect to believe you can help them when you can’t.

Do not promise results. Saying you’ve never lost a case is a dubious assertion at best—and it can become a damaging exhibit in a malpractice claim alleging you made a mistake or got a poor outcome. It’s fine to list large verdicts and significant cases on your website – to the extent your state rules allow. Just make it clear that every case is different and no specific result is guaranteed.

Takeaways: (a) Know your state’s rules. (b) Take advantage of your benefits as a member of Alta Pro Lawyers RPG by using the Pro Practice Playbook, which has practical pointers on everything from lawyer advertising to cloud technology.

If you practice in Wisconsin, Texas, Minnesota, Ohio, Illinois, Indiana or Michigan, you can stay on top of ethics and risk management news by being a member of Alta Pro Lawyers RPG. You’ll get access to free webinars, the Pro Practice Playbook, Reminger ProLink, Ask the Risk Pro and more. Here’s how to join.

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