Daily Dispatch

Legal Marketing Ethics

Can I Say That? Part Two

By | Aug.10.11 | Business Development, Daily Dispatch, Marketing & Business Development, Marketing 101

When is it okay to boast about your professional accomplishments? Say, in blog posts or tweets or press releases? And what about in your Google profile and Martindale.com listing? To help set us straight, we asked preeminent ethics expert Will Hornsby to explain some of the stickier rules surrounding marketing legal services. In this second installment of his three-part series, he covers directories—and the issues that arise when you want to advertise or announce your honors.

“Congratulations. You have been selected by your peers to be included in the directory of Super-Duper, Bestest, Leadingest Lawyers.” Your firm is delighted to have this competitive advantage and the staff goes to work to publicize your recognition. Of course, the first thing the firm does is buy an ad in the Super-Duper magazine that is distributed to your potential clients, so that your honor is not buried with the honors of the other several thousand Super-Duper listed lawyers.

But before going forward, the grumpy in-house ethics lawyer wants to weigh in. Your partner may be grumpy because Super-Duper has no category for professional responsibility. But, that aside, there are some serious limitations on what the firm can say about your selection.

What to Avoid When Advertising Your Honors

First, let’s be clear that you had nothing to do with your selection for inclusion in the directory. The peer-review process was done by a publishing company, which certainly has the First Amendment right to create criteria for the identification of lawyers it then publishes in its directory. Ethics issues come up when you or your firm wants to advertise this honor, be it in a directory-related magazine ad, a press release or an announcement on the firm’s website.

A few states have rules directly addressing the conditions for advertising these types of honors. For example, North Dakota and New Jersey consider ads misleading if they compare the lawyer to other lawyers unless the ad also names the organization that gives the honor (makes the comparison) and the basis for the comparison can be substantiated. In other words, Super-Duper must identify its selection criteria. In addition, New Jersey, Illinois and Washington state require ads about a lawyer’s selection into a directory to include a disclaimer that the state’s supreme court does not recognize the award, or that the advertisement has not been approved by the court. See your state’s rules of professional conduct for the details of these disclaimers.

A series of state ethics opinions have also given direction on what is and is not permissible. These include:

  • A prohibition against advertising a listing in a publication when the criteria is based on a willingness to pay, so-called pay-to-play directories.
  • A requirement to state the year or years of the listing. A one-time listing seven or eight years ago may be true, but is misleading if a potential client thinks it is current or ongoing.
  • A requirement that the specialty or area of practice be identified. A lawyer who is Super-Duper in bankruptcy should not lead potential clients to believe he or she is Super-Duper in mergers or criminal defense, for example.

In addition, lawyers must avoid stating or implying that they are in fact Super-Duper in their subsequent ads or web posts. Because it is the publisher’s prerogative, states have not interfered with listings in these directories. But lawyers are subject to disciplinary action if they then boast about those listings in ways that lead potential clients to the belief that they are better than other lawyers.

Strangely, you may be listed in Super-Duper, but it doesn’t mean that you can say you are super-duper.

Will Hornsby has served as staff counsel at the American Bar Association for the past 23 years. He writes and speaks extensively on issues of ethics, technology and client development. Will is also an adjunct professor at John Marshall College of Law, where he teaches the first course on the ethics of a technology-based law practice. Follow him @willhornsby

This material should not be construed as legal advice or the policy of the ABA or any of its constituent entities.

Illustration ©ImageZoo.

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