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Ethics of Law Firm Marketing, Part 3

Are Solicitations the Upside Down of Advertisements in EthicsWorld?

Let's examine the differences between rules that govern “advertisements” and “solicitations.”

By William Hornsby

This is the last in our three-post series exploring questions about law firm marketing ethics. Lawyers and marketers who understand the issues discussed here should find themselves in a position to not only comply with the applicable ethics rules but also to maximize their marketing endeavors.

The first post addressed when a law firm’s marketing endeavors must comply with the state rules of professional conduct. The second examined false and misleading communications, exploring the nuances of this cornerstone standard.

This post examines the differences between rules that governing “advertisements” and “solicitations.”

Advertisement or Solicitation?

The case law that emerged to govern the “communications of legal services” was segmented decades ago. First, the Supreme Court determined that lawyers had the constitutional right to advertise, subject to reasonable limitations. Next, the court determined that states could prohibit lawyers from soliciting clients in person for the lawyer’s financial gain. Finally, it determined that lawyers could send letters soliciting clients, even though they could not solicit in person.

There are various reasons for these different standards. But the point here is that the states have constructed rules that govern advertising and other rules that govern solicitation, or what is sometimes referred to as direct contact.

The states generally do not define an “advertisement,” but they are typically considered to be media-based communications, available for all to see. They may focus on a particular legal need, but beyond that do not target a specific potential client. The ABA Model Rules and those of most states set the parameters for advertising in Rule 7.2.

On the other hand, the ABA has defined a “solicitation” to be “a communication … directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.” The rules governing solicitation are set out in Rule 7.3.

At least three problems emerge when we look at these sets of rules among the states:

  • First, we see that most states have used the ABA Model Rules as a jumping-off point and impose additional requirements — what I call the “housekeeping” rules, making multistate compliance very challenging.
  • Second, it is unclear in many states whether these advertising rules should be considered an additional layer of restrictions imposed on solicitations.
  • Lastly, as technology advances, the line between advertising and solicitation is becoming blurred, further confusing the lawyer’s obligations.

The Housekeeping Rules

Over time, the ABA has amended its rules specifically governing advertising so that they rely on the prohibition against false and misleading communications and lessen the burden of additional restrictions. Nevertheless, many states continue to impose further restrictions, such as requiring specific disclaimers and notices and imposing filing and screening obligations for most ads. Various state rules include prohibitions of trade names, testimonials, celebrity endorsements, dramatizations, the use of stock photos, animation, music and lyrics.

While these rules may limit a lawyer’s marketing strategies, most lawyers are able to undertake their client development efforts in compliance with the rules of their individual states. However, efforts to comply can be a brutal challenge for firms seeking clients in multiple states. Some firms mistakenly conclude that compliance with the most restrictive state rules will satisfy their obligations. This lowest-common-denominator strategy tends to ignore that the rules are not on a continuum of restrictiveness, but are often simply different. For example, a firm that complies with the rules of Florida (regarded as a fairly restrictive state) will not then comply with the disclaimer requirements set out in Alabama and Missouri. The requirements are just different.

Scope of the Rules

Do the advertising rules set out in Rule 7.2 also apply to solicitations, which are governed by Rule 7.3?

Some professional responsibility lawyers have suggested that the solicitation rules are a subset of the advertising rules and that solicitations must, therefore, comply with both the rules governing advertising and solicitations. While I’m not sure I agree with that, we should first examine the plain language of the rules. States sometimes set out the scope of their rules within those rules. For example, some rules explicitly state they apply to “advertisements and written communications” or “advertisements and mailed written communications.”

If the rules do not clarify their scope, lawyers and marketers should dig a little deeper.

Lawyers may want to check with the state disciplinary agency to determine the extent of their obligations. However, you should not assume the dichotomy between “advertising” and “solicitation” is neatly divided into the obligations set out in Rule 7.2, governing only advertisements, and Rule 7.3, governing only solicitations.

The Blurred Distinction

When the rules governing lawyer advertising and solicitation were written, pre-internet, the dichotomy was fairly clear. On the one hand, we had the Yellow Pages and television commercials. On the other hand, we had runners and targeted mailings directly seeking clients. The use of technology in client development now blurs that line.

Is it advertising or solicitation when a law firm can message Facebook users who match a very narrow set of demographics that lead a lawyer to “reasonably believe” a recipient of the message needs legal services in a “particular matter,” as set out in the definition of “solicitation”? Is it an advertisement or solicitation when a lawyer sends a private message follow-up to a post to a potential client who has chosen to follow the lawyer’s Twitter account? Is it an advertisement or solicitation if a law firm uses geo-fencing to send text messages offering services to people in hospital waiting rooms?

These are the types of dilemmas we face when technology outpaces the ability to set policy governing its use.

As happens too often with issues involving lawyer ethics, compliance is not easy or intuitive. Nevertheless, those who give thought to the structure of the state rules governing advertising and solicitations should find they are able to make measured choices and enhance their client development endeavors in ways that comply with those rules.

Illustration ©iStockPhoto.com

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William Hornsby William Hornsby

Will Hornsby is an attorney and adjunct professor at Chicago-Kent College of Law, where he teaches the professional responsibility of innovative and tech-based legal services. After serving as staff counsel in the ABA’s Division for Legal Services for 30 years, Will now champions access to legal services through his law firm at www.willhornsbylaw.com. He writes and speaks extensively on issues of ethics, technology and client development. Follow him on Twitter at @willhornsby.

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