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 governing advertising; 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 http://www.ftc.gov/bcp/guides/guides.htm. Most rules are just
plain common sense and are meant to protect the public. Some state
lawyer ethics rules go further. For instance, some rules 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 both State and U.S.
Supreme Court decisions. Because they have been losing ground,
state regulating bodies have have become complacent. Consequently,
lawyer advertising has continued to evolve and today there are many
lawyers advertising without even thinking about ethics rules. It is
at this point that the enforcement wave may return. Where the
violation is minor, it is unlikely that any action will be taken,
but when a lawyer advertisement contains a major ethical violation,
authorities will have no choice but to attempt to exert their
control. If they do nothing, there will be no need for rules. They
may as well take their chances in court.
Ethics rules have been slow to keep up with changing times. I
believe that some ethics rules, such as requiring that your local
office address appear in the advertisement, may become
unenforceable and should be eliminated. 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. According to Nielsen/Net Ratings, in February 2004, 74.9%
of households had Internet access. Telephone companies are now
offering high-speed Internet access and electric utility companies
are now able to offer high-speed Internet access simply by plugging
into an electric socket. According to New American Library,
computers are now outselling TVs. In a very short time, every home
in the US will not only be able to have Internet access, but
high-speed Internet access and can easily access a lawyer's web
site and determine the office address. Lawyer advertisements can
include a web site address where a potential client can find the
lawyer's contact information. Requiring the lawyer's office address
in a TV commercial, effectively prevents smaller lawyers from
joining group advertising where smaller budgets are combined to
effectively compete against wealthier lawyers. There simply is not
enough room in the TV commercial to list the address of every
lawyer.
With regard to the public's need to know if a law office is near
them, this is the least important qualitative factor that a client
should consider. Instead of looking for a lawyer who is a couple of
blocks away, a potential client should look for other factors such
as experience with the clients 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. Additionally,
upon making a call, the caller can simply ask for the address of
the office.
For your states ethics rules, see ABA Links to State Ethics Rules
Governing Lawyer Advertising, Solicitation and Marketing at
http://www.abanet.org/legalservices/clientdevelopment/adrules.html#.
For a list of resources and articles on ethics and lawyer
advertising, see
http://www.hurt911.org/lawyer-advertising/lawyer-advertising-tips-articles.html
Below is a short list of what I believe are some of the most
important ethics rules to consider when creating attorney
advertising:
1) Referrals: If you pay money to anyone and a client is referred
to you, you are probably 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 may 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. If you
are considering working with an advertising agency that offers a
guarantee, have an ethics lawyer review the guarantee before you
work with that agency. If you work with an advertiser or an agency,
make sure you are actually paying for advertising and not for the
cases. Beware of advertising schemes where "someone" offers to send
you clients which have been obtained without advertising and offers
to bill you on their "advertising agency" bill head for advertising
services or consulting services. Several lawyers and doctors, I
have spoken to, mistakenly believed that if they have a bill for
advertising, its legal. These schemes are clearly illegal in
addition to violating ethics and can result in an arrest and
conviction. Know who youre doing business with and live by a simple
rule: If youre trying to make something look like something else,
its probably illegal.
In some states, such as New York, if telephone calls are answered
in a central office, no person can decide which calls go to which
lawyers. 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 may
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.
2) 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.
3) 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. 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 will not only
violate ethics but subject you to a lawsuit.
4) 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. Where the lawyer is not certified, some states,
like Texas, require that the lawyer state that he or she is not
certified (this rule should also be eliminated).
5) 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 potentially create an
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, that you can accomplish something for the audience that may
not actually occur or that you are an expert.
Use of words such as "BEST", "TOP", "FOREMOST, "LEADING", "WIN" and
similar words in a vanity telephone number or web site domain name
would likely create a misleading expectation in the mind of the
consumer and will violate ethics rules in most states. The question
is by whos standards are you the best or leading and in what?
1-800-WIN-XXXX may be good for a casino, but when used for personal
injury will imply that the person who becomes a client of the firm
will win money when, in fact, that may not happen and even if it
does, its an award for just compensation, not a "winning". 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."
6) 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.
7) Verdict Results: If you advertise previous settlements or
verdict results, most states will require a disclaimer that prior
results are not predictive of future outcomes. Claims must be true
and you should be able to prove it.
8) Use of Actors in the Commercial: Some states prohibit lawyers
from using an actor in the commercial to portray a lawyer and have
strict regulations regarding the use of testimonials, and the
portrayal of clients.
9) Dramatic Accident Re-creation: Some states prohibit use of
dramatic accident recreations in the commercials.
10) Jingles: Some states prohibit use of jingles in
commercials.
11) Office Address: Most states require that your main office
address appear in your advertising.
12) 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 for prior
approval.
Philip L. Franckel, Esq., publishes Lawyer Advertising Blog at
www.lawyer-advertising-blog.com and is an expert on
advertising and 1-800 vanity telephone numbers. Mr. Franckel
previously worked with Illustra Films Worldwide, a television
production company, producing TV commercials for Diet Coke, Bayer
Aspirin, Fuji Film and others.
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