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3.3 The Ethics of Advertising

Every law firm looks for ways to attract clients and grow their business. But smart ones are careful to follow the ethics rules on marketing, advertising and solicitation. This can be a challenge. The internet, laptops and portable devices have opened up new marketing possibilities – and new risks as well. Stay safe by knowing the rules and implementing internal guidelines.

Times Have Changed

Not so long ago, lawyer marketing meant buying an ad in the yellow pages. Then came Bates v. State Bar of Arizona in 1977. In the immediate years following, only a few firms dared to advertise on television and other media. The established bar shunned such conduct – and sometimes prosecuted it as unethical.

Today is a different ballgame. Lawyers advertise on television, the internet, billboards, buses and in public bathrooms.

Each state has its own Rules of Professional Conduct 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.

Alta Pro Practice Pointers

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

The Bottom Line: Marketing is essential for your practice. Do it honestly and professionally. If you’re unclear on what is permissible, contact your State Bar and ask for ethics guidance.

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