Legal Advertising

BY SVIATLANA LIASHCHYNA
as seen in Issue-35 of a360inc's Compliance Newsletter

In August, the American Bar Association (ABA) amended the Model Rules of Professional Conduct related to legal advertising. The purpose of the modifications is to modernize and simplify the advertising rules for lawyers to reflect changes in the existing legal landscape. In recent years, individual states have modified the advertising rules and this has caused a significant discrepancy in approach to this complex area. In this article, we will summarize the adopted modifications and share some compliance considerations related to legal marketing.
 
Prior to the 1977 Supreme Court decision in Bates v. State Bar of Arizona, lawyers were not allowed to advertise their services. In Bates, the court ruled that a lawyer advertising is considered commercial speech, which is entitled to the protections of the First Amendment. The decision allowed lawyers to advertise in a manner that is not misleading to members of the general public. The decision also rejected the prohibitions of advertising by lawyers as “an antiquated rule of etiquette.”

Today the ABA’s Model Rules of Professional Conduct include rules 7.1 through 7.3, which cover communications regarding legal services. These rules are based on a prohibition of misleading statements in legal services advertising communications. The adopted modifications provide further guidance on what lawyers might be restricted from saying and doing in an advertisement for their services: 

It was clarified that the prohibition on paying for a recommendation does not apply to lawyers and employees who recommend a lawyer from the same firm.
Nominal gifts, such as taking someone out for a meal to thank them, are allowed as long as neither party intended nor reasonably expected the gift to be a form of compensation for recommending a lawyer’s services.

• Lawyers can’t imply that they are specialists unless they’re certified by an organization accredited by the ABA or approved by the appropriate state authority, and the name of the certifying organization must clearly be identified in the communication.
  
• A definition of “solicitation” was added to the Model Rules and it is defined as a communication that can be reasonably understood as offering to provide legal services.
  
• It was clarified that a lawyer cannot solicit professional employment by live person-to-person contact.  The communications must be mailed, emailed, or transmitted by other electronic means that do not violate other laws.
  
• The in-person solicitation exception for an “experienced user” was also clarified to apply to in-house counsel and small business owners who regularly engage lawyers.

 
To ensure compliance with the applicable professional rules and standards, firms should:

• Consider creating internal policies and procedures for reviewing and approving all of the firm’s marketing activities;
  
• Evaluate a third-party’s expertise in legal marketing, if one is engaged to conduct marketing;
  
• Conduct internal training sessions for the firm’s attorneys on how to properly handle person-to-person communications with potential clients at professional and social gatherings;
  
• Implement a robust social media policy to ensure its appropriate use; and
  
• Implement a gift policy and distribute it to all applicable personnel.