Lawyers have several sets of rules to consider when creating advertisements. The FTC regulates all advertising in every state; each state may have its own regulations concerning general advertisers; and the attorney ethics rules of the state in which you are advertising will regulate lawyer advertising. A review of FTC rules can be seen at Advertising FAQ’s: A Guide for Small Business and at Advertising and Marketing. Most rules are just plain common sense and are meant to protect the public. Some state lawyer ethics rules go further and are meant to protect the image of lawyers.
In the past, lawyer ethics rules have been more restrictive, however, they have been slowly eroded by Supreme Court decisions. Ethics rules have been slow to keep up with the times and I believe that some ethics rules, such as requiring that your local office address appear in the advertisement, may become unenforceable in the future. This rule may have originally intended that clients should have the means to find your office address if your telephone number changed or to determine if your office was geographically convenient for them. This rule no longer makes sense. Use of a toll-free telephone number ensures that your telephone number will never change even if you move your office. In February 2004, 74.9% of households had Internet access. This was a 9% increase over the year before and in a very short time, 100% of homes with a telephone will have Internet access. Your advertisement can include your web site address where a client can find your contact information. As far as the public needing to know that your law office is near them, this is the last qualitative factor that a client should consider. Instead of looking for a lawyer who is a couple of blocks away, the public should look for other factors such as experience with the client’s problem, personality, etc. Many times, clients and patients are willing to travel from the suburbs to the city to find a lawyer or doctor because of the perception that professionals in the city are more competent. Most lawyers are eager to visit the client if it is inconvenient for the client to come to the office. Additionally, upon making a call, the caller can simply ask for the address of the office.
For your state’s ethics rules, see ABA Links to State Ethics Rules Governing Lawyer Advertising, Solicitation and Marketing.
Below is a short list of what I believe are some of the most important ethics rules to consider when creating attorney advertising:
Referrals. Simply put, if you pay money to anyone and a client is referred to you, there is a strong probability that you are obtaining an illegal referral, unless the referral is from a Bar Association. Advertising involves a risk. The risk is that you may pay for advertising and you will not sign up any clients. If you are offered a guarantee that you will sign up enough cases to cover the cost of advertising, this guarantee turns your advertising campaign into an illegal referral system. Do not work with advertising agencies that offer guarantees. If you work with an advertiser or an agency, make sure you are actually paying for advertising and not for the cases.
In some states, such as New York, if telephone calls are answered in a central office it is vitally important that no person decides which call goes to a particular lawyer. For instance, if the agency or call center receives telephone calls from callers requesting different services such as bankruptcy, criminal, divorce, and personal injury, a referral is made when the operator decides which lawyer to send the call to. Even if all calls request personal injury services and an operator is able to decide whether to give the call to lawyer “A” or lawyer “B”, a referral would be made. Beware of common advertising schemes where “someone” offers to send you clients which have been obtained without advertising and bill you on their “advertising agency” bill head for advertising services or consulting services. Many lawyers and doctors, I have spoken to, mistakenly believed that if they can produce a bill for advertising it’s legal and what they don’t know won’t hurt them. These schemes are clearly illegal in addition to violating ethics and can result in an arrest and conviction. Know who you’re doing business with and live by a simple rule: If you’re trying to make something look like something else, it’s probably illegal.
Disparaging other lawyers. Advertising which includes a remark disparaging other lawyers is probably one of the quickest ways to get into trouble. Not only is it unethical in most states, but lawyers who view your disparaging advertising will likely report you.
Misleading advertising claims. Claims should be carefully examined to avoid being misleading. Claims implying that your law firm can get more money or that your law firm is powerful are misleading. Even a claim that you are a big-city lawyer, while it could be true, can be considered misleading as an implication of power or competency due to your location.
Claiming to be an expert. Most states prohibit lawyers from stating in their advertising that they are an expert or that they specialize in a particular practice area, unless the lawyer is board certified.
Use of vanity telephone numbers and web site domain names. Some vanity telephone numbers and web site domain names can violate legal ethics. Make sure that your vanity telephone number or web site name avoids use of certain words which could create a potentially incorrect expectation in the mind of the consumer or violate one of the other ethics rules. Both vanity telephone numbers and web site domain names should not imply that you are better than another lawyer or that you can accomplish something for the audience that may not actually occur. Use of words such as “BEST”, “TOP”, “FOREMOST, “LEADING”, “WIN” and similar words in a vanity telephone number or web site domain name could create a misleading expectation in the mind of the consumer and will violate ethics rules in most states. For instance, 1-800-LEADING, LeadingLawyer.com or BestLawyer.com will violate ethics rules by implying that you are the leading lawyer or best lawyer. The question is by who’s standards are you the best and leading in what? 1-800-WIN-XXXX may be good for a casino, but will imply that the person who becomes a client of the firm will win money when, in fact, that may not happen and even when it does, it’s an award for just compensation, not a winning. Likewise, WinningLawyer.com or WinningCase.com will also violate ethics. Laura Hodes in her article for the ABA Journal entitled Vanity Phone Numbers Make Your Firm Less Forgettable, quoted Will Hornsby, an expert on lawyer advertising and staff counsel in the ABA Division for Legal Services, who said that while there is nothing unethical about vanity numbers, “1-800-I-WIN-CASES would be unethical because it is making an unsubstantiated claim, creating unjustified expectations that can be true but still be misleading.”
Trade Names. Most states do not allow lawyers to use trade names. While a 1-800 vanity phone number can be branded in advertising so people remember how to call you, it should not become your trade name.
Verdict Results. Most states will require a disclaimer if you advertise previous settlement or verdict results. Claims must be true and you should be able to prove it.
Use of actors in the commercial. Some states prohibit lawyers from using an actor in the commercial to portray a lawyer.
No fee. In states, such as New York, where the lawyer is required to charge the client for expenses, stating that there is no fee unless you win can not only violate ethics but subject you to a lawsuit.
Jingles. Some states prohibit use of jingles in commercials.
Testimonials. Many states have strict regulations concerning use of testimonials.
Office address. Most states require that your main office address appear in your advertising.
Dramatic accident re-creation. Some states prohibit use of dramatic accident recreations in the commercials.
Copy of advertisement. Some states require lawyers to keep a copy of the advertisement for certain period of time. Some states require lawyers to submit a copy of their advertisements prior to use the advertisement.
By Philip Franckel, President 1-800-HURT-911, Inc.
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