Chapter 4. Ethics & Professionalism - Marketing and advertising

Decorously termed “Information About Legal Services,” Rules of Professional Conduct 7.1 through 7.5 address the business concerns of lawyers and law firms with regard to various forms of marketing. While pertinent to the sophisticated marketing efforts of large corporate firms, these rules are of intense interest to lawyers who focus on representation of personal injury plaintiffs, who are seldom repeat clients.

A generation ago, lawyer advertising was simply not done. Lawyers marketed themselves indirectly, by serving as president of a civic club or chairman of a charity drive, or by running for public office. Clients relied upon a lawyer's reputation in the community and word of mouth referrals. Then the U. S. Supreme Court held that lawyer advertising was protected as commercial speech,¹ reasoning that lawyer advertising informs society of the availability, nature, and cost of legal services, aiding in the process of informed decision making.² Federal courts continue to address the degree to which even undignified lawyer advertising is constitutionally protected commercial speech.³ While prior restraint of content is severely limited, regulations can require reasonable disclosures and disclaimers designed to protect members of the public who may be unable to make a decision about the selection of legal services, and prohibit misleading or overbearing advertising and solicitation.⁴

The United States Supreme Court sowed the wind by unleashing the torrent of lawyer advertising that seems tawdry and unprofessional to many lawyers old enough to fondly recall the standard of “lawyer as community leader and public servant” form of indirect marketing and the reliance upon professional reputation rather than slick media ads. There is little to indicate that unrestricted and often unprofessional television advertising of personal injury law practices has had any positive impact on the profession, clients or the public interest.^[1] The plaintiffs' bar and the public reap the whirlwind as public perceptions formed through unseemly lawyer advertising play into the propaganda generated by those who seek to dismantle the civil justice system and restrict citizens' access to redress for injury.⁵

For better or worse, Rule 7.1(a) now provides that “[a] lawyer may advertise through all forms of public media and through written communication not involving personal contact so long as the communication is not false, fraudulent, deceptive or misleading.” An illustrative but not exhaustive list of ways that a communication may be false, fraudulent, deceptive or misleading includes those that:

1. Contain a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading;⁶
2. Are likely to create an unjustified expectation about results the lawyer can achieve, or state or imply that the lawyer can achieve results by means that violate the Georgia Rules of Professional Conduct or other law;⁷
3. Compare the lawyer's services with other lawyers' services unless the comparison can be factually substantiated;⁸
4. Fail to include the name of at least one lawyer responsible for its content;
5. Contain any information regarding contingent fees, and fails to conspicuously present the following disclaimer: “Contingent attorneys' fees refers only to those fees charged by attorneys for their legal services. Such fees are not permitted in all types of cases. Court costs and other additional expenses of legal action usually must be paid by the client”; or
6. Contain the language “no fee unless you win or collect” or any similar phrase and fails to conspicuously present the following disclaimer: “No fee unless you win or collect [or insert the similar language used in the communication] refers only to fees charged by the attorney. Court costs and other additional expenses of legal action usually must be paid by the client. Contingent fees are not permitted in all types of cases.”

Subject to compliance with Rules 7.1 and 7.3, Rule 7.2 permits lawyer advertising through public media, such as a telephone directory, legal directory, newspaper, or other periodical; outdoor advertising; radio or television; or other written, electronic,⁹ or recorded communication. The lawyer must maintain a copy or recording of any advertisement or communication for two years after its last dissemination along with a record of when and where it was used.¹⁰

The advertising rule stays away from any effort to address questions of taste, dignity, or effectiveness. Thus, even the tawdry, distasteful advertising that fills our airways, billboards, and city bus placards is permitted if it complies with Rule 7.1 and 7.3. But the mere fact that something is permitted does not mean it is a good idea. The American Bar Association has endorsed the non-binding Aspirational Goals For Lawyer Advertising,¹¹ which include ten points any lawyer should take to heart in planning the use of advertising.

1. Lawyer advertising should encourage and support the public's confidence in the individual lawyer's competence and integrity as well as the commitment of the legal profession to serve the public's legal needs in the tradition of the law as a learned profession.
2. Since advertising may be the only contact many people have with lawyers, advertising by lawyers should help the public understand its legal rights and the judicial process and should uphold the dignity of the legal profession.
3. While “dignity” and “good taste” are terms open to subjective interpretation, lawyers should consider that advertising which reflects the ideas stated in these Aspirational Goals is likely to be dignified and suitable to the profession.
4. Since advertising must be truthful and accurate, and not false or misleading, lawyers should realize that ambiguous or confusing advertising can be misleading.
5. Particular care should be taken in describing fees and costs in advertisements. If an advertisement states a specific fee for a particular service, it should make clear whether or not all problems of that type can be handled for that specific fee. Similar care should be taken in describing the lawyer's areas of practice.
6. Lawyers should consider that the use of inappropriately dramatic music, unseemly slogans, hawkish spokespersons, premium offers, slapstick routines, or outlandish settings in advertising does not instill confidence in the lawyer or the legal profession and undermines the serious purpose of legal services and the judicial system.
7. Advertising developed with a clear identification of its potential audience is more likely to be understandable, respectful, and appropriate to that audience, and, therefore, more effective. Lawyers should consider using advertising and marketing professionals to assist in identifying and reaching an appropriate audience.
8. How advertising conveys its message is as important as the message itself. Again, lawyers should consider using professional consultants to help them develop and present a clear message to the audience in an effective and appropriate way.
9. Lawyers should design their advertising to attract legal matters which they are competent to handle.
10. Lawyers should be concerned with making legal services more affordable to the public. Lawyer advertising may be designed to build up client bases so that efficiencies of scale may be achieved that will translate into more affordable legal services.

Rule 7.3(a) restricts direct mail solicitation of prospective clients, as follows:

A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer's firm, lawyer's partner, associate, or any other lawyer affiliated with the lawyer or the lawyer's firm, a written communication to a prospective client for the purpose of obtaining professional employment if:

1. It has been made known to the lawyer that a person does not desire to receive communications from the lawyer;
2. The communication involves coercion, duress, fraud, overreaching, harassment, intimidation or undue influence;
3. The written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication; or
4. The lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer.

This narrowly drawn regulation seeks to guard against overreaching by restricting mailing to injured and hospitalized accident victims or the bereaved family of a deceased within thirty days of an accident.¹² Rule 7.3(b) requires that any direct mail solicitation, except to a close friend, relative, former client or one whom the lawyer reasonably believes to be a former client, must be plainly marked “advertisement” on the envelope and at the top of each page in type size no smaller than the largest type size used in the body of the letter.¹³ If a lawyer uses direct mail solicitation, care should be taken to conform to the Aspirational Goals For Lawyer Advertising, supra.

The use of “runners” and direct personal solicitation of prospective clients is unequivocally beyond the pale, and punishable by disbarment. In this context, the term “runner” refers not to a law office assistant who performs tasks such as filing documents with a court and delivering papers to clients and other attorneys, but to a non-attorney who actively solicits parties with legal claims, sometimes at an accident scene or at the hospital, with the intent of obtaining their agreement to be represented by an attorney and with the expectation of compensation from that attorney for doing so. Rule 7.3(c) mandates that “[a] lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer's employment by a client, or as a reward for having made a recommendation resulting in the lawyer's employment by a client,” except for specified allowances for approved lawyer referral services, legal services plans, and fees to public relations or marketing firms. Rule 7.3(d) and (e) ban all use of direct personal contact or live telephone contact to solicit clients, and the acceptance of employment as a result of such solicitation by others is likewise prohibited.¹⁴ Lawyers who participate in such bottom-feeding scams should expect to eventually become targets of more aggressive investigations by law enforcement, the Insurance Commissioner, and the State Bar.

In addition, O.C.G.A § 33-24-53 prohibits attorneys and health care providers from paying a “capper, runner, or steerer” in order “to solicit, procure, or attempt to procure a client, patient, or customer.” While the first offense is a misdemeanor, a second offense is a felony.

Rule 7.4 allows communication of field of practice.¹⁵

Rule 7.5 regulates firm names and letterheads, primarily to avoid practices that are false, fraudulent, deceptive, or misleading. Trade names may be used so long as they (1) contain the name of at least one current, retired, or deceased attorney practicing or formerly practicing with the firm, and (2) do not imply a connection with a government entity, public or charitable legal services organization, or other organization, association, institution, or entity, unless there is, in fact, a connection. The firm name and letterhead must reveal if a lawyer is licensed only in another jurisdiction, and must not include the name of a lawyer holding public office when that lawyer is not actively practicing in the firm.¹⁶

¹ See, e.g., Bates v. State Bar of Arizona, 433 U.S. 350, 374, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977) (benefits of regulating flow of information do not justify prohibition on advertising); Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 105 S. Ct. 2265, 85 L. Ed. 2d 652 (1985) (lawyer may not be disciplined for soliciting legal business through print advertising containing truthful and nondeceptive information and advice regarding legal rights of potential client).

² See generally ABA Comm'n on Advertising, Lawyer Advertising at the Crossroads: Professional Policy Considerations Ch. 2 (1995); Submission of the Staff of the Federal Trade Commission to the ABA Commission on Advertising (June 1994); Terry Calvani et al., Attorney Advertising and Competition at the Bar, 41 Vand. L. Rev. 761 (1988); U.S. Fed. Trade Comm'n, Improving Consumer Access to Legal Services: The Case for Removing Restrictions on Truthful Advertising (1984); T. Muris & Fred S. McChesney, Advertising and the Price and Quality of Legal Services, 1979 Am. B. Found. Res. J. 179 (1979).

³ See, e.g., Public Citizen Inc. v. Louisiana Attorney Disciplinary Bd., 632 F.3d 212 (5th Cir., 2011); Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir., 2010); Alexander v. Cahill, 598 F.3d 79 (2d Cir., 2010) (New York lawyer advertising rules).

⁴ See, e.g., Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995) (ban on direct-mail solicitation for thirty days following injury constitutionally fulfills state's interest in protecting citizens through narrowly tailored restriction); In re Primus, 436 U.S. 412, 438, 98 S. Ct. 1893, 56 L. Ed. 2d 417 (1978) (“The State's special interest in regulating members [of the profession] ... amply justifies the application of narrowly drawn rules to proscribe solicitation that in fact is misleading, overbearing, or involves other features of deception or improper influence.”).Nora Freeman Engstrom, Attorney Advertising And The Contingency Fee Cost Paradox, 65 Stan. L. Rev. 633 (April 2013).

⁵ See Jonathan K. Van Patten, Lawyer Advertising, Professional Ethics, and the Constitution, 40 S.D. L. Rev. 212 (1995) (arguing that lawyer advertising is a principal cause of attorneys' public image problem).

⁶ The range of information found to be misleading in Georgia and other jurisdictions is wide. For example, advertising with the intention of referring the majority of cases to other lawyers, without disclosing that and complying with rules for referral services, is misleading. State Bar of Georgia, Formal Advisory Op. 92-2 (1992). See also Rodgers v. Commission for Lawyer Discipline, 151 S.W.3d 602 (Tex. App. Fort Worth 2004) (lawyer may not advertise and operate an automated “Accidental Injury Hotline” that fails to identify attorney); Medina County Bar Assn v. Grieselhuber, 78 Ohio St. 3d 373, 1997-Ohio-58, 678 N.E.2d 535 (1997) (lawyer may not practice under lawyer's name “and Affiliates” if there are no affiliates); State ex rel. Oklahoma Bar Ass'n v. Leigh, 1996 OK 37, 914 P.2d 661 (Okla. 1996) (sole lawyer of legal corporation may not use title “Senior Attorney and Director of Services”); People v. Carpenter, 893 P.2d 777 (Colo. 1995) (Yellow Pages advertisement implied referral service supplied many lawyers in thirteen fields, when no more than five lawyers available in four fields); In re R. M. J., 455 U.S. 191, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982) (misleading to advertise that lawyer is member of U.S. Supreme Court Bar, because general public unfamiliar with requirements of admission); Philadelphia Bar Ass'n Prof'l Guidance Comm., Op. 94-12 (1995) (advertisements that stated “25 years' experience” and “30 years' experience” violate Rule because inconsistent; further, claims give no explanation concerning to whom experience belongs or field in which experience accumulated).

⁷ Puffery and selected information about results in other cases may create unjustified expectations. See generally Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering 863 (2d ed. 1990) (“Rule 7.1(b) virtually precludes any use of a lawyer's ‘track record’ as a selling point.”). Testimonials from clients or celebrities may create unjustified expectations. See, e.g., Supreme Court of Ohio, Board of Comm'rs on Grievances and Discipline, Op. 2004-12, 5 (2004) (“[c]lient testimonials must not be included in advertising legal services”); D.C. Bar Comm. on Legal Ethics, Op. 188 (1987) (improper to include testimonial by local sports figure in advertisement); Suffolk County Bar Ass'n Professional Ethics Comm., Op. 85-11 (1985) (lawyer may not use testimonial in advertisement, regardless of client consent).

⁸ Violations may arise when a lawyer uses superlatives that imply the lawyer's services are superior to those of other lawyers. See, e.g., In re PRB Docket No. 2002.093, 177 Vt. 629, 2005 VT 2, 868 A.2d 709 (2005) (Yellow Pages advertisement claiming attorneys were “injury experts” is unverifiable factual assertion); Medina County Bar Assn v. Grieselhuber, 78 Ohio St. 3d 373, 1997-Ohio-58, 678 N.E.2d 535 (1997) (“We Do It Well” is unverifiable and misleading claim); Matter of Anonymous, 637 N.E.2d 131 (Ind. 1994) (inappropriate to state firm has “quickly become recognized as a premier personal injury law firm”); Spencer v. Honorable Justices of Supreme Court of Pa., 579 F. Supp. 880 (E.D. Pa. 1984) (subjective terms such as experienced, expert, highly qualified, or competent are difficult to verify and may be banned); Mezrano v. Alabama State Bar, 434 So. 2d 732 (Ala. 1983) (absent state rating system, lawyer should not represent superiority over other lawyers); Ohio Supreme Court Board of Commissioners on Grievances and Discipline, Op. 2003-2, (2003) (improper to boast of track record and offer money-back guarantee). Other comparisons do not involve superlatives, but are merely unverifiable. See, e.g., Philadelphia Bar Ass'n Professional Guidance Comm., Op. 94-12 (1995) (advertisement of “Big city experience, small town service” impermissibly implies lawyer's service better than other lawyers' services and uses subjective terms incapable of verification); Ala. State Bar Gen. Counsel, Op. 89-18 (1989) (commercial suggesting viewers call lawyer referral service, rather than “take a chance” on telephone book, misleads viewers into believing participating lawyers' services superior). However, comparisons that can be objectively substantiated may not be misleading, such as a statement that a lawyer had held a particular bar office, had an “AV” rating in the Martindale-Hubbell Law Directory if the meaning of that were adequately explained (though that might violate Martindale's terms of use), was listed in a select directory such as the Bar Register of Preeminent Lawyers, or had so many years of a certain type of experience in a particular area of practice or in another field related to the area of law practice, etc. See, e.g., Virginia State Bar, Legal Advertising Op. A-0114 (2002) (improper to claim to be “the greatest” but permissible to state that lawyer was included in the book Greatest Lawyers in the Country); Mason v. Florida Bar, 208 F.3d 952 (11th Cir. 2000) (Bar rule requiring disclaimer for advertisement stating “AV Rated, the Highest Rating Martindale-Hubbell National Law Directory,” is unconstitutional restriction on commercial speech).

⁹ For discussion of lawyer advertising on the internet, see Melissa Blades & Sarah Vermylen, Virtual Ethics for a New Age: The Internet and the Ethical Lawyer, 17 Geo. J. Legal Ethics 637 (2004); Christopher Hurld, Untangling the Wicked Web: The Marketing of Legal Services on the Internet and the Model Rules, 17 Geo. J. Legal Ethics 827 (2004); Louise L. Hill, Change is in the Air: Lawyer Advertising and the Internet, 36 U. Rich. L. Rev. 21 (2002).

¹⁰ State Bar of Georgia, Rules of Professional Conduct, Rule 7.2.

¹¹ ABA/BNA Lawyers' Manual on Prof'l Conduct Reference Manual §81:201 (1988).

¹² The United States Supreme Court held that an identical rule was a constitutionally valid restriction on commercial speech in Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995).

¹³ State Bar of Georgia, Rules of Professional Conduct, Rule 7.3(b).

¹⁴ State Bar of Georgia, Rules of Professional Conduct, Rule 7.3(c), (d), (e).

¹⁵ See §4:2, supra.

¹⁶ State Bar of Georgia, Rules of Professional Conduct, Rule 7.5.

On May 22, 2018, former State Bar of Georgia president Ken Shigley will be a candidate for election to the Georgia Court of Appeals. The only other candidate is Ken Hodges, a former Dougherty County District Attorney. Ken Hodges was the Democratic Party nominee for Attorney General in 2010.