Posted by: johnocunningham | January 9, 2011

State Bars Differ On Legal Marketing Regs

Many state bar governing authorities – such as Massachusetts – have wisely resisted the knee-jerk impulse to regulate legal service marketing and advertising via specific state bar disciplinary rules and filing requirements. They have chosen to focus instead on the real consumer concern with marketing/advertising – whether it is false or misleading.

But other states have gone in a different direction, adopting or proposing to adopt amendments to the Rules of Professional Conduct aimed at restricting or regulating specific kinds of lawyer marketing and advertising.

Lawyers and legal marketers should be prepared to register comment on these kinds of amendments and proposals or risk having to adapt to them once implemented.

Some of the areas of possible concern are as follows:

  1. Restrictions or regulations placed upon any references to “past successes” or “results obtained” which often appear in firm Websites as “representative matters.”
  2. Restrictions or regulations placed upon any references to “specialties” or “areas of concentration” by lawyers.
  3. Restrictions or regulations on participating in lawyer referral services, such as online services.
  4. Requirements to file ALL lawyer advertising (including Website pages and Internet communications) and subject it to regulatory review.
  5. Requirements that a designated lawyer be the “responsible lawyer” for each specific marketing/advertising communication of a firm.
  6. Restrictions or regulations on references to certain awards or recognitions that imply qualitative superiority, such as “Super Lawyers” and the like.
  7. Restrictions or regulations on the use of electronic, audio or written communications arguably made for the purpose of obtaining employment.

Texas Rule 7.02, for example, purports to designate as “misleading” any communication about “past successes” or “results obtained” unless:

  1. the communicating lawyer served as lead counsel only;
  2. the verdict or  amount involved was actually received in full by the client; 
  3. the reference is accompanied by “adequate information” regarding the case, the damages and injuries; and
  4. if a gross recovery amount is stated, the attorney’s fees and litigation expenses are also stated.

Such paternalistic, regulatory minutia will simply discourage people from sharing information with the public and leave consumers with nothing but dry, academic resumes for comparative information. 

Similarly, subjecting all lawyer advertising and marketing to some kind of bar committe review will not make the public better informed or “safer.” It will just restrict the free flow of information (both positive and critical) for fear of a regulatory intervention.

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Responses

  1. John,

    You are spot on. Many of the proposed regulations won’t have the desired effect, they will only increase the cost of advertising, make them less effective, and further increase the barriers to entry to starting and building a law practice.

    Perversely, the regulations may have the unintended effect of hurting the very people they are seeking to protect. It is the new firm, the younger lawyers who often affect change, offer more competitive pricing and have the least to loose from changing the established ways of doing business. These are the attorneys who often accept the cases no one else is willing to invest in.

  2. Great post John! Knee Jerk rections are the bane of every industry. Where is you RSS feed or Twitter button? I would like to follow you if this is typical of the solid information you write about.
    Check out my blog at http://www.tommatte.com

  3. Thanks for the kind words, Tom. I have not posted a Twitter button on my page yet, as I am mostly a follower on Twitter. But I do post on occassion, and you can find me by searching for user name “CunnJohn.” By the way, I visited your site and liked it, so I will follow you as well. By any chance, are you related to the legendary Tom Matte of the old Baltimore Colts?


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