The ABA Lawyer Leadership Mastermind series kicked off its monthly programing for 2021-22 in September with a discussion of the changing face of lawyer marketing ethics—and the continual pressing issues of compliance and oversight.
Based on my 25+ years of experience as an attorney advising law firms and companies on marketing and advertising ethics issues, I was asked to serve as moderator for the program—and lead the discussion by asking timely questions on the subject. I also served as a breakout facilitator, along with ABA Law Practice Division members Dave Ries, Jayne Reardon and Andrew Elowitt.
We all likely practice law in different states. What do you know about the Rules of Professional Conduct as they relate to lawyer marketing in your state? Do you know the requirements? Does your state bar care?
There was a specific method to my madness in putting forth this initial discussion point. First, one of the things that makes the ABA so valuable is the members and attendees to these programs come from so many different jurisdictions. Second, attendees bring a wide range of attorney and law firm experiences to the discussion.
Young attorneys starting out in practice—in this case, Texas and New York—lamented at the difficulty understanding exactly which rules they needed to comply with. One attorney expressed concern that she would unknowingly commit a violation. Another talked about how she kept getting her advertising-related submissions rejected (in what was termed nit-picking) in an attempt to strictly comply with her state’s requirements.
An attorney from Virginia said there was not much going on in this area, from his perspective. I noted that Virginia has historically offered up some excellent opinions and cases on the topic, including being the first to streamline the related rules under the “deceptive and misleading” interpretation umbrella. At the outset of the program, I suggested that putting lawyer marketing under the “deceptive and misleading” magnifying glass would probably cover compliance 90% of the time.
Attorneys from California and Arizona discussed recent changes to the rules in their states. And some others (accurately, in my opinion) said they were under the impression it was not an area of concern or consideration in their states. At the same time, we discussed jurisdictions that were inconsistent in handling of these matters. The consensus from the program participants was that most disciplinary matters stemming from violations of the RPC for advertising, marketing and solicitation came from one attorney filing a complaint against another—not from a consumer or client that felt misled or wronged by a marketing effort.
Do you incorporate marketing and advertising ethics compliance in law firm activities such as podcasts, blogs, and social media?
Has your law firm ever engaged with any lawyer referral service, matching service, group or pooled advertising program, or paid tips or leads generation service?
The second Mastermind discussion breakout answered these last two questions. A participant mentioned that with today’s technology and ever-changing types of marketing, state bars are often years behind in figuring it out and changing the rules to reflect them. Just this July (2021), Texas made its first substantial changes to the RPC in this area in decades. While the initial related rules—drafted sometime after Bates v. Arizona in 1977—were mostly about Yellow Pages listings and billboards, they now need to be adjusted for podcasts, geofencing, online reviews, social media and other components that not only did not exist, but weren’t even contemplated back then.
Lawyer referral services—once the bastion of bar associations—is now a big, commercial business enterprise. Lead generation and paid tips makes the concept of fee-sharing with a non-lawyer and paying for referrals look quite antiquated. Many states, such as Arizona, have adjusted for these changes. At the same time, while many states require some of these enterprises to register with the state for approval, many (most, really) do not—as they are often non-lawyers running the business in another state. Bar associations typically don’t have the bandwidth or capacity to chase after them.
In a one-hour discussion, plenty of topics were quickly referenced, including ratings and rankings; the use of terminology such as expert, specialist or certified; issues tied to multi-jurisdictional practices, and states that still require ad preapprovals or annual submissions of website domain names. In the recent update to the Texas rules, the state became the very last one to permit use of trade names—spurred on by a string of lawsuits from LawHQ.
There was certainly agreement and acknowledgment that the rules, related ethics opinions and state bar resources—remain a moving target, with inconsistent oversight. However, it has improved. But it is an area that many law firms continue to lack understanding of how to comply and provide proper internal oversight.
If you have an interest in the subject and would like to learn more, an April 2021 ethics CLE program is available in the ABA CLE Library (free to ABA members), Law Marketing Ethics Issues in 2021- Going beyond 7.1’s “Deceptive and Misleading” that examines current areas of state bar regulation, disputed litigation and varied state-by-state approaches to the Rules of Professional Conduct as it relates to lawyer marketing issues.
Masterminds are peer-to-peer discussion groups used to help ABA members solve their problems with input and advice from the other participants. Following the introduction of the subject, participants enter facilitator-lead breakout rooms to discuss the questions put forward. The next program takes place on October 19, 2021, discussing Law Firm Valuation. The seven-session series is free for ABA members and are held on the third Tuesday of each month at 1 p.m. Eastern via Zoom Meeting.
About the Author
Micah Buchdahl is an attorney who works with law firms on marketing and business development and is a past chair of the ABA Law Practice Division. Micah is the Editor-in-Chief of Law Practice Today. He can be reached at email@example.com or 856.234.4334, and on Twitter at @mbuchdahl.