Lawyers are subject to some of the most strict marketing & advertising rules of any profession… rules made even more complicated by state bars’ sluggishness in addressing attorney’s online marketing.
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| Marketing Ethics for Law Firms |
Your whole team, from the managing partners to the administrative assistants, needs to be familiar with the ethics guidelines, so they know immediately what they can & can’t say.
Luckily, most of the ethical rules for attorney advertising stem from just a few principles. If your team can keep these in mind (and be aware of a few less-than-intuitive applications), you’ll find yourself spending dramatically less time reworking the stuff they create.
Before we dive in, a couple disclaimers: First, I’m not a lawyer, so what follows is not legal advice. Furthermore, almost all the information that follows varies from state to state, so it behooves you check your state’s regulations when creating your own marketing guidelines.
The “Big 3″ requirements
There are three universal requirements for any form of lawyer marketing (“advertising” in the language of the ethics guidelines, even though in modern usage “advertising” is only one type of marketing).
Marketing materials must:
- Be truthful (i.e., factual and not misleading),
- Be labeled as advertising, and
- Carry a disclaimer as necessary.
Most of the following finer points relate back to the interpretation & application of these “Big 3″—for instance, does ________ constitute false or misleading communication?
While the ethics guidelines vary by state, they often have ABA Model Rules 7.1 through 7.5 at their core.
- Model Rule 7.1 discusses false or misleading communication.
- Model Rule 7.2 lays out guidelines for advertising and referrals relationships.
- Model Rule 7.3 handles direct solicitation of clients.
- Model Rule 7.4 deals with discussing “specialties” (more on this below).
- Model Rule 7.5 is about firm names (use of trade names and the like).
Applying the “Big 3″ online: Your Web site, your ads, your emails
When it comes to applying these guidelines to your Web site, there are a few areas where it’s easy to unwittingly run afoul of the guidelines.
First, the prohibition against false or misleading communication means that trade names, slogans, even your site’s URL can’t contain unsubstantiated “marketing speak.” That means you can’t call yourself “Chicago’s Winningest Personal Injury Lawyer” unless you provide hard facts to back that up, nor can you use www.litigation-king.com as your URL.
Next, your firm’s online marketing (your Web site and your marketing emails) need to clearly be labeled as such. “This is an advertisement” is typically sufficient, though email communications may be a bit more complicated.
Many states, taking after the ABA Model Rule 7.3 require a label of “Advertising Material” at both the beginning and end of your law firm’s emails—especially if those emails are sent to “prospective clients known to be in need of legal services in a particular matter,” such as an email list of accident victims. This labeling rule typically does not apply to messages sent to other lawyers, close friends & family, and your firm’s existing client base. A small handful of states require specific labels in your email subject lines—again, check with your state for the details.
Finally, your online marketing needs a disclaimer, generally to the effect that you are providing legal information, not advice. If you enable people to contact you (such as through a contact form), you need to make it clear that use of your Web site doesn’t create an attorney-client relationship, so no confidential information should be sent. Finally, if you talk about case outcomes in your marketing, you need to either let the reader know that a) results aren’t guaranteed, and vary depending on the case, or b) that the results cited are not typical.
With that in mind, let’s look at some specific issues facing your firm’s marketing.
“Super Lawyers” and other awards
It’s easy to run afoul the ethics guidelines when talking about awards you’ve received.
Depending on your state, you may be required to note that an award is not recognized by your state’s supreme court, or that the advertisement itself is not approved by the supreme court.
Furthermore, you can’t advertise so-called “pay-to-play” awards—if you paid for the “honor,” you can’t cite it as such.
The biggest issue, though, comes from award names. Consider Super Lawyers: if you’re selected for an award, what can you say about it?
For starters, you can’t say you are a super lawyer—you’re generally prohibited from making comparisons to other lawyers or self-aggrandizing. Instead, you’re required to state “just the facts”: you were selected for inclusion in Super Lawyers. For the sake of clarity (i.e., not being misleading), it’s a good idea to also include the year of the award and the practice area you were selected for.
Bear in mind that in some states, you can’t advertise your award unless you both name the award-giving organization and can cite their selection criteria (making their comparison “substantiated”).
Discussing past cases
When it comes to talking about your firm’s work with past clients, the golden rule is simply to get permission first.
Many states have ethical guidelines along the lines of Model Rule 1.6, prohibiting you from revealing “information relating to the representation of a client” unless the client gives informed consent. (The minority rule is much less restrictive, prohibiting you only from revealing “secrets or confidences.”)
With past clients, the golden rule is simply to get permission first.
What the majority rule implies is that it’s up to your client to decide whether you can discuss anything related to their case publicly. That includes knowledge that is already public, like court filings or even the fact that you represented the client.
That means it’s easier than you might expect to get in hot water—if you get carried away in the moment and tweet about the results of a public ruling, you could face an ethics board hearing.
Even where not strictly required, though, this is just good business. If clients don’t want you to publicize your relationship, it’s in your best interest to keep them happy.
“Specializing” versus “concentrating” in an area
As you probably know, there are very specific rules governing attorney’s use of the word “specialize.” In many states, you must have a special certification (either from your state’s Board of Legal Specialization or another certifying authority) to call yourself a “specialist” in a certain practice area. Other state, however, allow you to say you specialize in an area so long as you don’t imply that you’re somehow certified as a specialist.
Further complicating matters, some states view calling yourself a “specialist” or “expert” as an unsubstantiated comparison to other lawyers.
As a rule, it’s a good idea to stick to safe-harbor alternatives to “specialist.” Most states permit you to tell the world you “focus” or “concentrate” on a particular practice area. You can also refer to yourself by your practice area, as a “business attorney,” “divorce lawyer,” and so on. As always, though, check with your state.
Allowing email recipients to opt out
One last area where law firms run into compliance issues is with their email campaigns.
In particular, most states have rules following Model Rule 7.3, which requires that you not solicit prospects who have made known to you a desire not to be solicited.
In the world of email, that means you need to provide an unsubscribe or opt-out link. Even apart from state ethics guidelines, the CAN-SPAM Act of 2003 requires all unsolicited email to include the ability to opt-out. Since it’s not always possible to ensure that someone has opted in to your list (their email address may have been provided falsely by someone else, for instance), it’s a good idea to always offer an unsubscribe link.
The good news is email sending services make this a breeze—most include an unsubscribe link by default.
There’s one more area of CAN-SPAM compliance, though, that isn’t obvious (and is easy to overlook). Under the law, you’re required to include your firm’s physical address (or PO box) somewhere in the email. Again, email sending services generally enable you to add this text to the footer—just make sure you don’t forget it!