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This is the first in a three-post series exploring questions about the ethics of law firm marketing. Lawyers and marketers who understand the issues discussed should find themselves in a position to not only comply with the applicable ethics rules, but also to maximize their marketing endeavors.
Part 1 addresses the question of when a law firm’s marketing endeavors must comply with the rules of professional conduct. As we will see, it is not always. The second post will examine misleading communications. Although misleading communications are prohibited in every state, not every state agrees on exactly what a misleading communication is. The final post will focus on whether a communication is an advertisement or a solicitation. The distinction is important because most states have separate rules for each type of communication.
In short, ask:
That said, do not rely on these discussions without viewing your applicable state rules and undertaking your own due diligence when addressing these questions.
More accurately, when is a lawyer’s communication an ad? Obviously, not everything a lawyer says or writes is an advertisement or solicitation for his or her legal services, even if it may attract business. The question becomes whether the communication is commercial speech. The U.S. Supreme Court has held that the government can place restrictions on communications that promote commerce when it cannot impose restrictions on what it calls “political discourse.” In other words, the state can impose restrictions designed to protect consumers when a lawyer says, “I’m available for all your legal needs,” but it cannot limit a lawyer who says, “I think judges are influenced by political contributions.”
The Supreme Court has defined commercial speech to be that which beckons business or proposes a commercial transaction. But how do we determine whether our communications are commercial speech and therefore subject to the states’ rules of professional conduct, or political discourse and beyond the reach of those rules?
First, let’s look at some factors that do not determine whether a communication is commercial speech. Some may think that if you pay to disseminate the message it amounts to commercial speech, but that is not necessarily so. For example, a law firm in Texas once ran a billboard campaign designed to encourage parents not to let their children get involved in gangs. The billboards included a simple message along with the lawyer’s name, but no contact information. Similarly, being recognized for a donation to public television or radio programming — for example, “This program was made possible through the generous support of The Law Firm of Jane Doe and Associates” — is not commercial speech.
On the other side of the coin, the platform for commercial speech does not necessarily come with a cost, particularly in the age of social media. Lawyers explicitly promote their services on Craigslist, Twitter and LinkedIn without cost and those promotions may well be commercial speech, subject to the rules of professional conduct limiting lawyer advertising.
Using platforms to demonstrate your expertise does not mean the communication is commercial speech. Providing CLE programs or just making public information presentations are not necessarily commercial speech. Appearing on the radio, television or in podcasts as an expert analyst is not likely to be deemed commercial speech. Some law firms have whimsically arranged for one of their lawyers to announce the disclaimer (“No use of this material without the express written consent of the Prairie Baseball League is permissible”) during minor league ball games.
So, how do we determine whether the communication is commercial speech and therefore subject to the rules? One way is to look at the content of the communication.
A little known but very instructive case comes from litigation in Texas that challenged the constitutionality of restrictions to lawyer advertisements adopted by the state in the mid-1990s. Texans Against Censorship was an organization created by, who else, a lawyer who advertised heavily. In Texans Against Censorship v. State Bar of Texas, the court considered a situation where a lawyer paid for a newspaper advertisement that discussed judicial selection, which had no direct relationship to the lawyer’s personal injury practice. The ad ended by asking readers to share their thoughts. The lawyer admitted that he had hoped readers of the ad would hire him and the bar argued that the communication should be subject to the rules. However, the court held that nothing within the four corners of the ad beckoned business and the decision of whether a communication is commercial speech should not be based on the expectation or desire to make money but rather on the content of the communication.
In many ways, the 21st-century equivalent of a newspaper is a blog. Applying the reasoning of the Texas case, the question is not whether a blog is commercial speech, but whether its contents are. Does the post beckon business or does it advance political discourse?
Other courts have not agreed with this strict content analysis and it is risky to rely on Texans Against Censorship as a shield standing for the proposition that lawyer advertisements are not subject to the ethics rules unless their content explicitly beckons business. The best example of this is Hunter v. State Bar of Virginia, which looks at further circumstances. That court stated, “Simply because the speech is an advertisement, references a specific product or is economically motivated does not necessarily mean that it is commercial speech” but the combination of all these factors provide strong support that it is, even when the communication also discusses issues that are important to the public.
Notwithstanding the imprecision of a test to determine what is and is not commercial speech, lawyers and marketers can better advance their services when they begin with that question.
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