In accordance with ABA Rule 7, 3 with respect to the Client Request, a lawyer or law firm may not direct any advertising communication to a specific person in need of legal services for a particular matter, and offer legal services for that particular matter. In 1908, the American Bar Association (the “ABA”) published its Canons of Professional Ethics, which established a general prohibition against legal advertising. Why? Because advertising was not professional and therefore advertising lawyers would undermine professionalism in the legal profession. The ban on ABA was later confirmed in its 1969 Code of Professional Responsibility.
The ABA does not control what is done in each state, but its statements strongly influence the rules approved by the supreme court of each state. Why? Because it is not allowed to regulate advertising on the basis of dignity, taste or professionalism. If you fall into the second category, you have a lot of company. A variety of lawyers across the country believe that advertising their professional services is clumsy at best and unethical at worst.
The Court first concluded that an attorney cannot be sanctioned for soliciting legal business through printed advertising containing truthful and non-misleading information and advice on the legal rights of potential clients. xiii. As reflected in commentary 3 of Model Rule 7.1, a primary objective of the general prohibition of misleading advertising is to eliminate communications that may suggest guaranteed case outcomes to potential clients based on factors such as a company's past successes, the credentials of a lawyer or fees. Therefore, on the subject of fees, in several states such as Texas (Rule 7.04 (h)) and Pennsylvania (Rule 7.2 (h) (), when lawyers announce contingent fee agreements, for example, they must include a disclaimer stating that clients may remain liable for other costs of filing a lawsuit, such as filing fees, administrative fees, etc., if applicable.
That is, even if a lawyer's fees are contingent, there may be additional costs for which the client is responsible, and the advertising lawyer may need to disclose this fact. Attorneys are then prohibited from making misleading communications in their marketing materials, even when the statements are truthful. The Supreme Court has not shown reluctance to apply the doctrine of freedom of commercial expression to various aspects of lawyers' advertising and marketing. However, lawyers and marketers should be aware of these limitations and use their creative abilities to seek clients within the bounds of ethical rules.
As digital marketing has become one of the main ways that lawyers reach potential clients, the potential for violations has increased. Another area where lawyers may have problems in the legal marketing arena relates to the use of actors to represent lawyers or events that lead to lawsuits, given the potentially misleading nature of this approach. The Court found that letters addressed do not encroach on the person's privacy any more than general letters, and to the extent that there is an invasion, it is the lawyer's discovery of the recipient's legal necessity, not the confrontation of the recipient's lawyer, by mail, with that discovery. The basic problem with the current state mosaic of lawyer advertising regulations lies in the increasingly complex set of inconsistent and divergent state rules that do not address the evolution of technology and innovations in the provision and commercialization of legal services.
The lawyer will not make a false or misleading communication about the lawyer or the lawyer's services. Fortunately, ethical advertising is quite possible when law firms and lawyers adhere to a set of general guidelines and good practices for online marketing. If the honor is awarded to lawyers annually and the lawyer was selected once, say, 10 years ago, announcing that honor as if it were current, without further explanation, could be a misrepresentation by omission. .
