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While some people are “lawyering up,” lawyers are labeling up. Advertisements, as well as brochures and emails, often seem to be screaming out at even the most sophisticated audience: “Lawyer Advertisement!” “Advertising Material!” “This is an Advertisement!”
Of course lawyers don’t label up because they are concerned people will be confused about whether firm websites are seeking out business. They do it to comply with the state ethics rules. On the one hand, over-labeling may dilute the firm’s message. On the other hand, failing to comply with the ethics rules can lead to disciplinary action. Consequently, there is no substitute for closely reading the rules imposing these requirements. Here are some things to watch for.
Most states require lawyers to label mailings as “advertising material” under certain circumstances. Although the states vary on this, most require the label to appear on the outside of the envelope. Some states get more detailed and require a certain font size, a color (usually red) and the exact placement of the label, such as the lower left-hand corner.
Under these state rules, which frequently mirror ABA Model Rule 7.3(c), there are several circumstances where the label is not required. For example, when a letter is sent to another lawyer, a family member, a close friend or someone with whom the lawyer has had a prior professional relationship, i.e., a current or former client, the lawyer does not have an obligation to include this label under the rules of most states.
Also, the rules frequently require the label when the material is sent to “prospective clients known to be in need of legal services in a particular matter.” This is designed to cover accident victims who receive solicitations from lawyers who mine their information from publicly available police reports. The idea is to give people fair warning that a letter from a lawyer is nothing more than a solicitation. On the other hand, when in-house counsel receives a glossy brochure from an AmLaw 200 firm, that warning is neither needed, nor in most states, required.
The states that follow the ABA Model Rule also require electronic communications, such as emails, to be labeled “advertising material” at the beginning and end of the message. The same exceptions discussed earlier apply. However, a handful of states require email solicitations to include specific labeling language in the subject line. This may be one of the most widely ignored ethics rules that exist. Nevertheless, lawyers who do not comply are at risk of disciplinary action.
Like many of the ethics rules governing lawyer advertising and solicitations, there is nothing intuitive about the obligation to label up. So, check those state rules before going forward with your advertising materials.
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 recently spoke at the 2012 LexThink.1, which you can watch here, on “Ignite This! Five Ethics Rules that Should be Incinerated.” Follow him @willhornsby.
This material should not be construed as legal advice or the policy of the ABA or any of its constituent entities.
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