Some Lawyers May Be Marketing Themselves Unethically
I work in digital marketing and for the past five years, I have helped attorneys across the country strengthen their online presence. I have seen a lot of questionable (and even very shady) marketing efforts by lawyers on the web. In some cases, it appears that lawyers are not adhering to the rules of advertising and solicitation enforced by their state bar association.
What are some attorneys doing online to get ahead? CHEATING!
Not only are these practices potentially unethical, but they can be incredibly frustrating to the attorneys who abide by the rules of professional conduct. I compare these practices to cheating in a race. This brings to mind a particularly ridiculous scene from the movie The Dictator, where Sacha Baron Cohen’s character is competing in a race. He actually shoots at the other participants to win (see picture). However, I digress. My point is that it’s hard to win a race when your competitors are cheating to get ahead.
In this post, I will take a look at the California State Bar rules for advertising and solicitation and compare it to my experiences with law firm marketing practices.
Rule 1-400: Advertising and Solicitation
Before we begin, a friendly reminder: I am not a lawyer and cannot give legal advice. This post contains my thoughts about the California Rules of Professional Conduct as they relate to online marketing, and is for informational purposes only.
Now that we’ve got that out of the way, let’s dissect the rules step by step. The Rules of Professional Conduct that I reference in this post can be found here.
Rule 1-400(C): Soliciting Strangers
Rule 1-400(C) states:
A solicitation shall not be made by or on behalf of a member or law firm to a prospective client with whom the member or law firm has no family or prior professional relationship, unless the solicitation is protected from abridgment by the Constitution of the United States or by the Constitution of the State of California. A solicitation to a former or present client in the discharge of a member’s or law firm’s professional duties is not prohibited.
To me, this rule suggests that attorneys, law firms, and law firm members cannot directly solicit work from potential clients unless they have a preexisting relationship with the potential client.
Off the top of my head, I can think of one very good reason why this is a rule attorneys must follow. I’m guessing most of you have heard of “ambulance chasing“ before. This term was coined to describe personal injury attorneys who would literally follow ambulances transporting car accident victims to emergency rooms, where they would then slip the recuperating victim their business card. It was so big a problem that California now sends investigators to prominent disaster scenes in hopes of preventing this practice.
An ambulance chasing attorney! (source)
Thankfully, I have never actually seen this in real life. However, there are plenty of fictional portrayals of ambulance chasers.
Rule 1-400(D): Rules for Advertisements
Rule 1-400(D) states:
(D) A communication or a solicitation (as defined herein) shall not:
(1) Contain any untrue statement; or
(2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public; or
(3) Omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public; or
(4) Fail to indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case may be; or
(5) Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct.
(6) State that a member is a “certified specialist” unless the member holds a current certificate as a specialist issued by the Board of Legal Specialization, or any other entity accredited by the State Bar to designate specialists pursuant to standards adopted by the Board of Governors, and states the complete name of the entity which granted certification.
I will address each of these subsections in turn.
1-400(D)(1) and 1-400(D)(2) present some challenges for attorneys who market themselves online. While it makes sense that attorneys should not lie in their advertisements, it is not always clear as to what exactly constitutes an “untrue statement.”
One example of this can be found in local search results. If you conduct a Google search for [city name + personal injury lawyer], you get a list of localized results for attorneys in that area. Some attorneys may appear in these local results even if they do not have a physical address or meeting location in that city. A Los Angeles personal injury attorney may have website content that suggests they practice in Riverside (which was then crawled and indexed by Google), even though that is not entirely true. By representing themselves online as practicing law in Riverside, have they violated Rule 1-400(D)(1)? In my opinion, if an attorney does not have an office or meeting location in a given city, stating that they practice there is unethical. However some attorneys do advertise these locations as well like: The Reeves Law Group, 515 South Flower Street, 36th Floor, Los Angeles, California
I also wonder whether law firms that claim to have the “best” or “top” lawyers are making untrue or misleading statements. There has been considerable debate about self-laudatory lawyer advertisements, with some even arguing that forbidding this type of advertising is unconstitutional. Is a domain name such as www.TheBestLawyerInTheWorld.com problematic?
I did a quick search today and found this example of an attorney using a similar technique:
Is this outside of the ethical guidelines?
If this attorney had support for his claim, I wouldn’t be concerned. For example, Best Lawyers and Super Lawyers rank outstanding attorneys. But in this case, I don’t see how this particular lawyer came to the conclusion that he is the “Top Personal Injury Attorney” in Los Angeles. In fact, his Avvo Profile only has a 9.1 rating out of 10.0. Granted, this merely suggests that he did not use the Avvo metric in making this assessment.
I also wonder whether this type of advertising may violate 1-400(D)(3). Should attorneys who call themselves the “best” or use similar language be required to include support for the statement, so as to not “omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public”?
An example of a disclaimer on a law firm website.
1-400(D)(4) applies to all “communications and solicitations,” and seems to require that attorneys clearly indicate that communications are identified as communications, and that solicitations are identified as solicitations. These terms are defined in 1-400(A) and 1-400(B). The State Bar of California issued an ethics opinion in 2001 which concluded that a website is a “communication.” So, I think that all attorneys should identify that their website is a communication in accordance with the Rules of Professional Conduct.
As for 1-400(D)(5), we should be happy that we don’t see too many violations of this rule online. Without question, attorneys who are using threats, intimidation, or coercion in their communications with the public should be subject to disciplinary action. People who need attorneys are generally in a tough situation to begin with. Attorneys who are using these methods to drum up business are just plain sick.
Turning to 1-400(D)(6), I think that some attorneys are standing a bit too close to the edge on this one. While you don’t typically see attorneys parading around saying that they’re certified in X,Y, or Z if they are not, in fact, certified in X,Y, or Z, there are some online “certifications” that could raise some ethical questions.
I wonder about organizations like Million Dollar Advocates that allow members to display a “certificate” (an icon bearing the organization’s logo) on their website. This organization is a popular one that offers a trust signal many attorneys display proudly on their websites. What’s the problem here? I can’t find any direct evidence to suggest that this organization is accredited by the California State Bar in any way, which would seem to violate Rule 1-400(D)(6). Maybe Million Dollar Advocates is accredited by the state bar. But if not, an attorney should probably consider the ethical implications of displaying one of their “certificates” on their website.
Rules 1-400(E) and (F)
1-400(E) covers how the Board of Governors of the State Bar might update these rules from time to time.
1-400(F) provides that attorneys are required to save all electronic communications for at least two years and must provide the State Bar with a copy at their request.
Rule 1-400 Standards
The Board of Governors of the State Bar adopted a number of “standards” that went into effect on May 27, 1989. These forms of attorney “communication” as defined in Rule 1-400(A) are presumed to be in violation of Rule 1-400. To me, this means that if an attorney engages in any of the following practices, he or she is presumed to have violated the Rules of Professional Conduct.
I will discuss each of the standards in turn.
(1) A “communication” which contains guarantees, warranties, or predictions regarding the result of the representation.
This one is pretty self explanatory. Attorneys should not guarantee their clients any results. You can see this rule in effect on attorney websites that feature disclaimers. Many attorneys are happy to post about the millions of dollars they have won for their clients, but there usually needs to be a strong disclaimer that these types of results are not guaranteed.
For example, The Reeves Law Group out of Southern California for includes the following language on their website:
These results do not guarantee the outcome of your case, but they show our ability to produce them in a variety of cases. Every year we win numerous significant results and many millions of dollars for our clients.
(2) A “communication” which contains testimonials about or endorsements of a member unless such communication also contains an express disclaimer such as “this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.”
Similar to the first standard, this rule shows how important online disclaimers can be for attorneys. If an attorney is using past results as part of their marketing efforts, they need to make it clear that past results have no outcome on new clients’ cases.
Many attorneys are listed on third-party review sites like Yelp. Are attorneys also required to have disclaimers there? Attorneys should look into the ethical implications of content on third-party review carefully.
(3) A “communication” which is delivered to a potential client whom the member knows or should reasonably know is in such a physical, emotional, or mental state that he or she would not be expected to exercise reasonable judgment as to the retention of counsel.
I am a big fan of this standard. One of the fears I have about “ambulance chasing” is that those who have suffered brain injuries may be targeted by unscrupulous attorneys, and unable to fully understand or consent to forming an attorney-client relationship. This standard appears to have been put in place to help people who are suffering from a mental impairment, as well as for potential clients that were on mind-altering drugs or alcohol.
(4) A “communication” which is transmitted at the scene of an accident or at or en route to a hospital, emergency care center, or other health care facility.
Again, this is a standard aimed at curtailing “ambulance chasing” practices. Even though this was written back in 1989, it seems like it would address more modern situations such as a lawyer sending a text message or email to an accident victim in the hospital.
(5) A “communication,” except professional announcements, seeking professional employment for pecuniary gain, which is transmitted by mail or equivalent means which does not bear the word “Advertisement,” “Newsletter” or words of similar import in 12 point print on the first page. If such communication, including firm brochures, newsletters, recent legal development advisories, and similar materials, is transmitted in an envelope, the envelope shall bear the word “Advertisement,” “Newsletter” or words of similar import on the outside thereof.
If you get old-school paper mail and that is a solicitation by an attorney, it must to indicate that’s what it is with the words “Advertisement” or “Newsletter.” This old guideline even lists the font the size and placement rules.
(6) A “communication” in the form of a firm name, trade name, fictitious name, or other professional designation which states or implies a relationship between any member in private practice and a government agency or instrumentality or a public or non-profit legal services organization.
Basically, this standard indicates that a firm or its members should not imply a relationship between the firm and a government agency or non-profit legal services organization. I haven’t seen any issues with this in terms of online marketing practices.
(7) A “communication” in the form of a firm name, trade name, fictitious name, or other professional designation which states or implies that a member has a relationship to any other lawyer or a law firm as a partner or associate, or officer or shareholder pursuant to Business and professions Code sections 6160-6172 unless such relationship in fact exists.
The seventh standard is similar to the sixth in that it indicates lawyers cannot pretend to be associated with another law firm or owner unless they actually are. This is pretty much common sense, but you know they had to make it regulation for a reason.
(8) A “communication” which states or implies that a member or law firm is “of counsel” to another lawyer or a law firm unless the former has a relationship with the latter (other than as a partner or associate, or officer or shareholder pursuant to Business and professions Code sections 6160-6172) which is close, personal, continuous, and regular.
Again, attorneys can’t misrepresent themselves as being counsel for or helping another attorney or law firm unless they are actually doing that.
(9) A “communication” in the form of a firm name, trade name, fictitious name, or other professional designation used by a member or law firm in private practice which differs materially from any other such designation used by such member or law firm at the same time in the same community.
Sending a letter or an email also falls under these standards. You have to represent yourself honestly are cannot make up a new designation to appear more qualified. I would say this applies to website content as well.
(10) A “communication” which implies that the member or law firm is participating in a lawyer referral service which has been certified by the State Bar of California or as having satisfied the Minimum Standards for Lawyer Referral Services in California, when that is not the case.
I have some research to do on this one, particular because I’m interested in lawyer referral services. However, this standard appears to have been implemented to rule out false advertising where attorneys might say they’re a member of a state-certified referral service when in fact they are not.
(11) (Repealed. See rule 1-400(D)(6) for the operative language on this subject.)
This was repealed, so it doesn’t matter!
(12) A “communication,” except professional announcements, in the form of an advertisement primarily directed to seeking professional employment primarily for pecuniary gain transmitted to the general public or any substantial portion thereof by mail or equivalent means or by means of television, radio, newspaper, magazine or other form of commercial mass media which does not state the name of the member responsible for the communication. When the communication is made on behalf of a law firm, the communication shall state the name of at least one member responsible for it.
Any advertisement made to the general public must show the name of the lawyer responsible for the communication. If you’re advertising as a firm, at least one member must have their name the communication. I would argue that the firm below is not in compliance with this standard. They have a website that does not clearly show any association with a law firm or attorneys.
(13) A “communication” which contains a dramatization unless such communication contains a disclaimer which states “this is a dramatization” or words of similar import.
Attorneys who are creating a dramatization or recreation of a case need to include a disclaimer modeled on the standard above. Thankfully, most attorneys who create testimonial videos for their websites seem to use legitimate clients. However, I still see a lot of the fake testimonial advertisements on television. In a Larry H. Parker Commercial I saw recently, the lady was a terrible actress. The disclaimer appeared, stating that the commercial was a dramatization. I would think that this type of ad would be a big turn-off for prospective clients.
(14) A “communication” which states or implies “no fee without recovery” unless such communication also expressly discloses whether or not the client will be liable for costs.
Many attorneys have badges on their websites and promotional materials that include “You Won’t Pay Unless We Win Your Case”-type language. Since I see these website badges everywhere, I’m surprised I don’t see more websites that clearly indicate whether the client will be liable for costs. The statement “You Won’t Pay Unless We Win Your Case” does imply that a client will not be liable, but there are a lot of variants on this language online that could raise ethical concerns. Most of these proclamations are so poorly-worded that I would argue they are not within this standard.
(15) A “communication” which states or implies that a member is able to provide legal services in a language other than English unless the member can actually provide legal services in such language or the communication also states in the language of the communication (a) the employment title of the person who speaks such language and (b) that the person is not a member of the State Bar of California, if that is the case.
Attorneys should not imply they can provide legal services in another language unless they can actually do so. One problem I see on various websites is law firms advertising that they speak other languages when it is not the attorneys, but rather the legal secretaries, who can speak other languages. Since this standard refers to the actual state bar member, it would seem that that practice is not acceptable.
(16) An unsolicited “communication” transmitted to the general public or any substantial portion thereof primarily directed to seeking professional employment primarily for pecuniary gain which sets forth a specific fee or range of fees for a particular service where, in fact, the member charges a greater fee than advertised in such communication within a period of 90 days following dissemination of such communication, unless such communication expressly specifies a shorter period of time regarding the advertised fee. Where the communication is published in the classified or “yellow pages” section of telephone, business or legal directories or in other media not published more frequently than once a year, the member shall conform to the advertised fee for a period of one year from initial publication, unless such communication expressly specifies a shorter period of time regarding the advertised fee.
My understanding of this standard is that if advertising material is sent to the general public with a fee structure or promise with respect to fees, the lawyer must adhere to those fees. They cannot be higher within a period of 90 days from when it was sent out unless the advertisement has its own clearly-published expiration date. However, if this information is published in the Yellow Pages or somewhere where it’s published only once a year, the attorney will have to honor the fees for a full year unless its clearly stated otherwise in the advertisement.
Sources Referenced in this article: