Watch What You Say
Regulators Still Take Ethics Rules on Lawyer Marketing Seriously, So Practitioners Should, Too
Posted Oct 29, 2005 3:42 AM CDT
By Jill Schachner Chanen
By all accounts, Stevens Johnson syndrome is a terrible and often debilitating skin disease, described by victims as a slow burn from within. To make matters worse, the illness often is wrongly diagnosed.
But the Internet has become an informational savior for sufferers of myriad little known diseases like Stevens Johnson syndrome. A quick Web check leads to a plethora of sites devoted to the disease, some of which suggest that it may be linked to the use of over the counter pain remedies.
Interestingly enough, many of those Web sites belong to lawyers. On their face, these sites don’t look much different from others devoted to the disease. They contain links to medical sites, the occasional online forum and other services that anyone afflicted with Stevens Johnson syndrome might want. But somewhere along the way, these sites also contain something the others don’t--the names of the lawyers or law firms that maintain them.
Web sites like these may be one of the next battlegrounds in a persistent struggle over the proper ethical boundaries of marketing by lawyers.
As many lawyers attempt to market their law practices in new, different and more creative ways, they find themselves running smack into professional conduct rules that regulate such activity, often in excruciating detail.
“The problem is that it’s one of those things where the organized bar is standing on the tracks with their hands against the freight train that is barreling down against them,” says William I. Weston. He is an associate dean at Concord University School of Law, which presents a course of study over the Internet from its headquarters in Hollywood, Fla. He also chairs the Ethics and Technology Committee of the Coordinating Council for the ABA Center for Professional Responsibility.
Others, however, say regulating lawyer marketing serves an important purpose. “The rules are necessary to set the bare minimum standards that lawyers cannot cross when marketing themselves,” says Lynda C. Shely, the former director of lawyer ethics for the State Bar of Arizona who now counsels lawyers on ethics, professional responsibility and risk management issues out of her office in Scottsdale.
“You need the rules because otherwise you will have people pushing the envelope and really confusing the public,” says Shely, a member of the ABA Standing Committee on Professionalism.
Eventually, practitioners and regulators will have to carve out some middle ground, says John T. Berry, executive director of the State Bar of Michigan. While some boundaries are appropriate, he says, both lawyers and regulators are getting bogged down in the details of the rules maintained by many states.
“One thing is clear: Regulation alone will not solve the problems,” says Berry, who chairs the ABA Standing Committee on Professionalism. “We need some agreement among peers about what kind of advertising brings disrepute on the profession. We need to work together to define what demeans the profession and what is effective marketing for lawyers. That is where the rub is.”
Marketing by lawyers is nothing new. Only the debate over how to regulate it is of recent vintage.
Prior to 1977, the states simply banned advertising by lawyers. Meanwhile, less overt forms of marketing--socializing with potential clients at country clubs and business groups, for instance--were tacitly permitted as long as they remained low key. But a growing number of firms that targeted moderate income clients began pushing to advertise on television and radio, on billboards and in Yellow Pages directories. Then in 1977, the U.S. Supreme Court decided Bates v. State Bar of Arizona. In Bates, the Supreme Court held that advertising is a form of commercial speech protected by the First Amendment. Accordingly, stated the court, “advertising by attorneys may not be subjected to blanket suppression.”
But the court also held that lawyer advertising may be regulated. “Advertising that is false, deceptive or misleading, of course,” the court said, “is subject to restraint.” In a prophetic comment, the high court concluded, “We recognize that many of the problems in defining the boundary between deceptive and nondeceptive advertising remain to be resolved, and we expect that the bar will have a special role to play in assuring that advertising by attorneys flows both freely and cleanly.”
More than a quarter century--and several follow up Supreme Court rulings--later, the effort to define the boundaries between the right of lawyers to engage in commercial speech and the interest of the organized bar in regulating that speech goes on, without any resolution in sight. Indeed, it’s entirely possible the issue will become more complicated as both marketing techniques and ethics regulations evolve.
The difficulties are compounded by the structure of lawyer regulation in the United States. The legal profession is governed by professional conduct rules adopted and enforced at the state level. And there is not much uniformity in either the substance of the various state rules or the extent to which they are actively enforced.
The ABA Model Rules of Professional Conduct, which serve as the basis for most state ethics codes, are the primary reference point. But even so, most of the states that have adopted the Model Rules add their own variations.
Nor have the Model Rules themselves remained static. In 2002, the ABA completed its first comprehensive review of the rules since they were adopted in 1983 to replace the Model Code of Professional Responsibility. The changes adopted by the ABA’s policy making House of Delegates at the recommendation of the Ethics 2000 Commission included key revisions to the Model Rules covering lawyer marketing.
In effect, the 2002 revisions have streamlined the Model Rules on lawyer advertising and other communications with potential clients.
Model Rule 7.1 (Communications Concerning a Lawyer’s Services), for instance, states that a lawyer “shall not make a false or misleading communication about the lawyer or the lawyer’s services.” But the revision deleted a prohibition against communications “likely to create an unjustified expectation about results the lawyer can achieve.” The revisions also removed a prohibition against communications that compare one lawyer’s services to those of other lawyers. (The ABA Model Rules are available at www.abanet.org/cpr/mrpc/mrpc_toc.html.)
“We believe that consumers can make intelligent judgments about common advertising,” explains Nancy J. Moore of Boston University School of Law, who served as chief reporter for the Ethics 2000 Commission.
In Model Rule 7.2 (Advertising), the 2002 revisions eliminated a requirement that a lawyer keep a copy or recording of advertisements or related communications for two years, along with a record of when and where the communications were used. The 2002 revisions also eased the Model Rules covering direct contact with prospective clients (Rule 7.3) and communication of fields of practice and specialization (Rule 7.4). In 1988 the House of Delegates adopted the Aspirational Goals for Lawyer Advertising, which encourage lawyers to engage in advertising that is compatible with the legal community’s standards of professionalism.
“The ABA has moved substantially toward a free market approach with a minimum of regulation,” Moore says.
Most consumers agree with that approach, maintains John Shea, a partner at Marks & Harrison in Richmond, Va. “Law firm advertising now is virtually a nonissue for the public,” Shea says. “Hospitals, doctors, accountants, stockbrokers, a multitude of professionals are now advertising. I speak to young lawyers, college students and our clients about it. It is not unusual anymore. It is expected. They do not bat an eye at it. They expect that any business that wants to grow and prosper needs to let the public know that they are there.”
But most states, including many that base their ethics codes on the ABA Model Rules, have yet to jump on that bandwagon. Instead, most of them continue to impose fairly tight controls on advertising and other marketing activities by lawyers.
“This is one of those areas where states have gone their own way,” says Moore. “It’s an area that states have a strong interest in regulating, and there may be some philosophical differences about the benefits and risks of attorney advertising.”
Wide Ranging State Rules
Unlike the minimalist approach of the ABA Model Rules, state rules on advertising typically contain provisions governing what advertising and marketing materials may contain; how certain information may be presented; content of disclosure statements; the use of voice overs, music and other enhancements in television and radio commercials; and how to identify areas of practice.
Florida, Kentucky and Texas require lawyers to submit proposed advertising materials to a review committee before running them.
In Florida, the state bar in September proposed revisions in the professional conduct rules governing advertising for consideration by the state supreme court. While the recommendations call for easing some advertising regulations, they would bolster requirements that lawyers submit certain advertising and print solicitations to the bar for evaluation of compliance with the rules. Lawyers also would be able to submit proposed advertising materials to the bar for an advisory opinion.
In February, the Texas Supreme Court adopted changes to its advertising rules for lawyers after they were endorsed in a referendum of bar members. Among other things, those changes beef up the review process and specify that all types of electronic and other digital communications are covered by the review provision.
Navigating the maze of marketing regulations can be tricky, especially if a law firm is trying something a little different. Earlier this year, the Florida Bar initially rejected an “image ad” produced for Shuffield, Lowman & Wilson in Orlando.
The ad depicted five single scoop vanilla ice cream cones next to one with a triple scoop of chocolate, vanilla and strawberry, along with the tag line, “Expect more from your law firm.” Firm marketing director Mellanie Bartlett says the state bar initially rejected the ad because it felt the tag line created unjustified expectations (a standard that the bar is recommending be deleted from the rules).
After the firm appealed the decision, arguing that the tag line was meant to be humorous and referred to law firms in general, the advertising review committee relented and allowed the firm to run the ad. Things get even trickier for firms whose marketing efforts cross state lines. “For a large multistate firm with a commercial client base, it’s very difficult to market nationwide when there is such a wide variation on what states require,” says Mark J. Neuberger, a partner at Buchanan Ingersoll in Miami.
But uniform state regulation of lawyer marketing is not likely anytime soon, says Shely. “It would be better to have a uniform standard across the country,” she says. “But are we going to see that in our lifetime? No. Never. It’s unfortunate. The uniform regulation of commercial speech [for lawyers] makes sense because if you have consumers who move from Florida to Arizona they will have the same understanding of what they see in print or on television.”
The difficulties are likely to increase as more lawyers build multijurisdictional practices that incorporate the Internet and other technologies into their marketing efforts, says Berry of the State Bar of Michigan.
“Everything goes across state borders now and makes it impossible for lawyers to be consistent,” he says. “It’s a very important issue. You’ve got to balance the individual states and their right to regulate lawyers vs. its impact on commerce.” Applying ethics rules to law firm marketing efforts that rely increasingly on the Internet and other forms of electronic communication has been something of a learning experience for both regulators and practitioners.
Part of the problem is that consultants advising law firms have little awareness that marketing plans must be in accord with ethics regulations, says Larry Bodine, a lawyer and marketing consultant in Chicago. (Bodine is a former editor and publisher of the ABA Journal.)
“I am afraid that a lot of the marketers do not know anything about the ethical rules,” says Bodine. “They just view it as something that the lawyers need to be concerned about.”
Scant Knowledge of Rules
Sometimes lawyers themselves aren’t much more knowledgeable about the rules than consultants are, says Elizabeth Tarbert, ethics counsel at the Florida Bar. “The biggest problem,” she says, “is that there are a lot of lawyers who do not know that there are rules, or they do not read all the rules or do not understand them.”
That lack of knowledge can be problematic when lawyers wade into such uncertain marketing waters as the Internet. No states actually prohibit lawyers from using Web sites, notes Concord University’s Weston. But many general rules for advertising, such as requirements that ads include disclaimers stating where lawyers are licensed to practice, may apply to Web sites.
Because those rules usually weren’t written with the Internet in mind, applying them to a Web site can be difficult, especially since the rules of multiple jurisdictions may apply to the site.
Client testimonials illustrate the dilemma. They are a common marketing practice, but are prohibited by many states under an “unjustified expectations” standard.
Massachusetts, having adopted the ABA Model Rules as they were revised in 2002, permits client testimonials in all types of advertising. That change allowed one Boston law firm, for instance, to create videotaped client testimonials that appear on the firm’s Web site under a link titled, “What’s it like when your law firm is the perfect match for your business?”
But even though these types of testimonials are allowed in Massachusetts, ethics experts say a firm might still want to include disclaimers to avoid violating other states’ rules against advertising that creates unjustified expectations.
Even Web site addresses, or URLs, may be interpreted under some state ethics rules to create unjustified expectations. Tarbert declines to comment on any specific URLs, but says that a Web address along the lines of “Bestpersonalinjurylawyer.com” might not pass muster because it creates unjustified expectations. But a URL like “Northfloridapersonalinjurylawyer.com” would pass muster because it is merely descriptive.
Some lawyers are using different URL suffixes like “.org” to suggest that their Web sites are not commercial ventures. The Ohio Supreme Court has declared that tactic misleading in violation of the state ethics rules.
A bigger concern might be Web sites like those operated by lawyers who offer information on Stevens Johnson syndrome, says William E. Hornsby Jr., staff counsel to the ABA Standing Committee on the Delivery of Legal Services and author of Marketing and Legal Ethics (3rd ed.), published by the Section of Law Practice Management. The problem with such Web sites, if they are maintained by lawyers seeking to develop class actions, is that they may disguise the sponsor’s real intentions and subject potential clients to unethical solicitation.
The better approach, Hornsby says, is that “Web site hosts ought to tell people what is going on and be very clear about what it is so if people want to participate, it becomes a decision in the free marketplace.”
The eLawyering Task Force in the Law Practice Management Section and the Delivery of Legal Services Committee created a series of best practices guidelines for legal Web sites that were approved by the ABA’s House of Delegates in 2003. (The guidelines may be accessed at www.elawyering.org/tools/practices.shtml.)
As lawyers and regulators work through the ethics issues raised by law firm Web sites, similar questions are being raised about whether advertising rules apply to Web logs, or blogs, written by lawyers.
Benjamin Cowgill, the Kentucky Bar Association’s former chief bar counsel, is putting the status of blogs to the test. Kentucky lawyers pay a $50 filing fee for each ad they submit to the state’s Attorneys’ Advertising Commission. Cowgill says he printed a hard copy of his blog on the very day he launched it and sent it to the commission.
Cowgill contends his blog is a form of journalism and, as such, is not subject to the state’s advertising regulations because he is not using it to advertise his legal services. A panel of the state bar’s lawyer advertising commission saw it differently, however, making a preliminary determination that Cowgill’s blog should be subject to the advertising regulations.
Those regulations require lawyers to submit an ad each time it has changed and pay a fee for each review, an impractical and expensive proposition for a blogger, who changes content all the time.
The bar allowed Cowgill to continue his blog while it studied the issue further in search of a practical solution.
“The irony of advertising protection is that those types of ads on television that the majority of the bar find the most distasteful and which reflect poorly on the bar cannot be regulated because it is a First Amendment issue,” Cowgill says. “But whether a blog constitutes an ad or an exercise in journalism involves more sophisticated analysis of what is advertising and what is not, and so they become the focus of the regulatory effort.”
Generally, says the ABA’s Hornsby, a blog’s content will determine its status. “If the content on its face beckons business, it becomes commercial speech, and the lawyer becomes subject to regulation,” he says.
Cowgill also recently ventured into another undefined area of lawyer marketing when he purchased a sponsored link on Google, a leading Internet search engine, for his practice Web site.
Sponsored links are in effect advertisements that appear on the right side of a computer screen after a search is done. In Cowgill’s case, his sponsored links were activated when anything that matched the content of his Web site was entered into the search engine. Because his site contains Kentucky ethics opinions, his sponsored link would appear on screen when the names of lawyers identified in opinions were searched.
Cowgill removed his sponsored link after one lawyer complained because he thought Cowgill had purchased his name as a sponsored link in order to surreptitiously redirect Internet traffic from the lawyer’s Web site to Cowgill’s own.
Hornsby says other lawyers also have purchased sponsored links on Google, but the ethics issues raised by the practice are unresolved.
Shely of Scottsdale says Internet chat rooms also raise ethics issues for lawyers if they dispense legal advice. “You run the risk of conflicting yourself out,” she says. “But you also run the risk of having all those folks in the chat room consider you their lawyer.”
As new variations on lawyer marketing come up, the dialogue on how ethics rules apply to them must continue, Berry says. “All lawyers in good faith are trying to find that appropriate balance,” he says, “and there is some disagreement as to what that balance is.”
Due to en editor's error, "Watch What You Say," October 2005, page 58, stated that the Florida Bar requires lawyers to submit proposed ad materials to a review committee before publication. Lawyers are required only to submit ads simultaneously with first use. The Journal regrets the error.
Jill Schachner Chanen, a lawyer, is a legal affairs writer for the ABA Journal.