Quick: Ethical legal advertising and the Rules of Professional Conduct

By Jon Quick

Quick

Some experts believe the first advertising goes back some 70,000 years ago. There we find the earliest indications of human existence. Many of the etchings on caves could be construed as advertising messages. But law firm advertising still can be considered in its infancy.

A good question on a law exam for an ethics class might be, “What is the significance of Arizona lawyers John Bates and Van O’Steen?”

Mavericks of sorts, these law partners decided to advertise their price list. Alas, they were disbarred. Law firm marketing in any form was forbidden. They appealed all the way to the Supreme Court, where they won in 1977. The landmark Arizona v. Bates case made legal advertising legal. Sort of.

As all attorneys should know, there are specific restrictions on their marketing messages. While the rules are similar from state to state, every state has specific regulations. In Indiana, Rules of Professional Conduct 7.1 and 7.2 deal specifically with communications concerning a lawyer’s services and advertising. Generally, the rules forbid:

• False or misleading communication about the lawyer or the lawyer’s services.

• Statements intended to harass or maliciously injure another.

• Dramatizations or re-creations of events, unless the advertising is clearly disclosed as such.

• Testimonials or endorsements that may create unjustified expectations about a lawyer or law firm.

• Giving anything of value to a person for recommending or advertising the lawyer’s services.

• Predictions of future success by an attorney, particularly words such as “best,” “guaranteed” and “specialist.”

Advertising also must include the name and office address and be clearly marked as “advertising material.”

Despite these rules and potential discipline, ethical violations continue.

Some of the rules regarding advertising can be confusing, and it’s sometimes hard to know whether a message will pass the ethics test. James Bell is an experienced Indianapolis criminal defense and legal ethics lawyer who regularly provides advice to attorneys and law firms on ethical issues. In his Amateur Life Coach YouTube video series, he dramatizes a legal marketing hypothetical — a new attorney asking, “Can I say, ‘Never lost a jury trial’ in my first ad? I never tried a jury trial, that means I’ve never lost one.”

“Nice try, Mr. New Attorney,” Bell says. “Rule 7.1 says your advertisement cannot be false or misleading. If you omit and important fact, guess what? That’s misleading. So, son, sounds like you violated Rules of Professional Conduct.”

To help clarify some of these rules, we queried other lawyers and authorities on the topic.

All of them agree on at least two points:

1. It is essential that everyone in your firm reads and understands the Rules of Professional Conduct. This includes staff and anyone who creates marketing on your behalf, such as an outside agency.

2. The rules can be somewhat confusing and can change. You must be current with knowing what the rules will allow.

Marion Superior Judge Gary Miller has taught professional responsibility at Indiana University Robert H. McKinney School of Law for 20 years. Too often, he said, “Lawyers fail to keep up with rule changes. Technology changes faster than the rules can keep up, but still, rules are tweaked every year. The key to staying out of trouble is to make certain any statements made are not false or misleading. Some lawyers are continually challenging the rules to determine the limits of advertising.”

It’s best to ask a bar association or outside counsel to review advertising in advance rather than pay the price later.

Ron Elberger is a partner at Bose McKinney & Evans and is a go-to source for questions about law firm marketing materials. He said along with failing to fully understand the rules, one of the most common mistakes in attorney advertising is failing to label it so.

“Further, a lawyer needs to take exceptional care to be sure there is no deception in the advertising. For example, you are in violation if you show a picture depicting your law firm that shows diversity when indeed all members of the firm are white,” Elberger said.

Legal experts say these rules apply to blogs and social media, and that ultimately, attorneys are responsible for the content promoting their firm in all contexts — even on third-party websites.

“A lot of this is common sense. If it doesn’t feel right, or if you think you’re hovering in the gray area of the ethical rules, don’t even try it. It’s really that simple,” said Matt Houston, marketing manager at Wilson Kehoe Winingham. “At the end of the day, it’s your license on the line.”

Rebecca Geyer is president-elect of the Indianapolis Bar Foundation, an adjunct professor of elder law at IU McKinney, and founder of Rebecca Geyer & Associates in Carmel. She warns against lawyers calling themselves a specialist without providing qualifying information. In her case, she is free to advertise herself as an ‘Indiana trust and estate specialist’ because of the special certification she earned from the Indiana Trust and Estate Specialty Board.

In social media, she joins the others in expressing caution. “A lot of social media is outsourced to staff or an outside agency. Too often they do not fully understand the ethical requirements and that can mean trouble ahead for the attorney publishing the article or blog under his or her name.”

Here are some sample advertising cases that resulted in discipline:

• In a 2002 case, an Indianapolis firm was admonished for an advertisement on the back cover of the 1997 Indianapolis telephone directory that proclaimed: “Best Possible Settlement … Least Amount of Time,” and “My reputation, experience, and integrity result in most of our cases being settled without filing a complaint or lengthy trial.”

• In a 2014 case, a firm received a private reprimand for making false or misleading communications regarding legal services and failing to include an office address in a public communication.

• In early 2016, an attorney was suspended for 30 days for these statements from a Yellow Page ad concerning debtor bankruptcy:

1. “Screwing Banks Since 1992”;

2. “Keep your property”;

3. “Stop wage garnishments”;

4. “Stop home foreclosure”; and

5. “Stop vehicle repossession.”

In summation: Follow the Rules of Professional Conduct. Don’t stretch the rules and try to get away with it. If you are unsure of the content of your advertising messages, ask for counsel and/or hire a professional who is aware of the ethical considerations in the state where you are advertising. The future of your law career may depend on it.•

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• Jon Quick is the president and founder of Carmel-based Q Public Relations and Marketing, specializing in marketing for law firms. With over 25 years of experience in media, Jon is a former manager with CBS and Emmis Communications. He can be reached at 371.432.0309 or by email at his website QPRmarketing.com. The opinions expressed are those of the author.