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Lawyer Marketing: an Ethics Guide Mcguirewoods LLP Hypotheticals and Analyses T Lawyer Marketing: An Ethics Guide McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/18) ABA Master LAWYER MARKETING: AN ETHICS GUIDE Hypotheticals and Analyses* Thomas E. Spahn McGuireWoods LLP * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. For ease of use, these analyses and citations use the generic term "legal ethics opinion" rather than the formal categories of the ABA's and state authorities' opinions -- including advisory, formal and informal. ______________________ © 2018 McGuireWoods LLP. McGuireWoods LLP grants you the right to download and/or reproduce this work for personal, educational use within your organization only, provided that you give proper attribution and do not alter the work. You are not permitted to re-publish or re-distribute the work to third parties without permission. Please email Thomas E. Spahn ([email protected]) with any questions or requests. 9723312.24 Lawyer Marketing: An Ethics Guide McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/18) ABA Master TABLE OF CONTENTS Hypo No. Subject Page Standards for Judging Lawyer Marketing 1 Possible Sanctions ..................................................................................... 1 2 Constitutional Standard ............................................................................. 10 3 Reach of State Ethics Rules: General Approach .................................... 36 4 Reach of State Ethics Rules: Websites ................................................... 43 General Marketing Rules: Content 5 Prohibition on False Statements ............................................................... 47 6 Self-Laudatory and Unverifiable Claims ................................................... 54 7 Depictions ................................................................................................... 70 8 Testimonials and Endorsements............................................................... 77 Law Firm Marketing 9 Law Firm Names ......................................................................................... 89 10 Law Firm Trade Names and Telephone Numbers .................................... 112 11 Law Firm Associations and Other Relationships .................................... 121 Individual Lawyer Marketing 12 Use of Individual Titles ............................................................................... 127 13 Areas of Practice ........................................................................................ 136 14 Use of Terms Like "Expert" and "Authority" ............................................ 148 15 Inclusion in Honorary Lists Such as "Best Lawyers in America" and "Super Lawyers" ................................................................................. 153 16 Past Successes .......................................................................................... 166 9723312.24 i Lawyer Marketing: An Ethics Guide McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/18) ABA Master Hypo No. Subject Page Other Marketing Techniques 17 Referral Arrangements ............................................................................... 180 18 Money-Back Guarantees ............................................................................ 187 Direct Mail 19 General Rules for Direct Mail ..................................................................... 188 In Person and Telephonic Marketing (Solicitation) 20 Different State Rules Governing Solicitation ........................................... 202 New Forms of Marketing Using Electronic Communications and the Internet 21 Law Firm Websites: Content .................................................................... 220 22 Websites Offering Legal Advice but Attempting to Disclaim an Attorney-Client Relationship ..................................................................... 228 23 Law Firm Domain Names and URLs ......................................................... 231 24 "Virtual" Law Firms .................................................................................... 235 25 Lawyers' Favorable Reviews on Other Websites ..................................... 243 26 Intruding Into Other Law Firms' Internet Marketing ................................ 252 27 Internet Referral Arrangements ................................................................. 254 28 Firms' Joint Advertisements ...................................................................... 267 29 Lawyers' Use of Social Media in Their Marketing .................................... 269 30 Lawyers Blogs ............................................................................................ 278 31 Daily Deals .................................................................................................. 286 32 New Forms of Marketing Using Automatic Means ................................... 297 33 Texting and Social Media Postings ........................................................... 301 34 Characterizing the Intrusiveness of Electronic Marketing ...................... 307 9723312.24 ii Lawyer Marketing: An Ethics Guide McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/18) ABA Master Possible Sanctions Hypothetical 1 Your state bar recently adopted new marketing rules. You are trying to convince your partner to take the changes seriously. One partner has argued that your law firm's risks are fairly low, because inappropriate lawyer marketing at most brings a "slap on the wrist." Can inappropriate lawyer marketing result in: (a) Greater likelihood of malpractice liability? YES (b) Disqualification? YES (c) Suspension of the lawyer conducting the marketing? YES (d) Claims against the lawyer under state consumer protection laws? YES (e) Discipline for violating state and federal laws governing spam faxes? YES (f) Criminal charges? YES (g) Suits against the lawyer for intentional interference with the relationship between another lawyer and her client? YES 9723312.24 1 Lawyer Marketing: An Ethics Guide McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/18) ABA Master Analysis The vast majority of lawyer marketing issues arise in the fairly benign context of bars disapproving lawyer marketing in advance, or bars informally asking lawyers to alter their marketing. But lawyers can sometimes face far more severe punishment. (a) The Restatement explains that a lawyer who touts his or her competence or diligence might be held to that higher standard, which presumably would apply in a malpractice case. A lawyer's representations or disclaimers and qualifications may constitute circumstances affecting what a client is entitled to expect from the lawyer. Thus, a lawyer who represents to a client that the lawyer has greater competence or will exercise greater diligence than that normally demonstrated by lawyers in good standing undertaking similar matters is held to that higher standard, on which such a client is entitled to rely. See Restatement Second, Torts § 299A, Comment d. Likewise, a lawyer must 'exercise any special skill that he has.' Restatement Second, Agency § 379(1). A representation may be made directly, for example when a lawyer claims to be an expert or specialist in a given field through an advertisement or listing or by an assertion of specialization on a letterhead. The representation may be on behalf of the lawyer in question or of a law firm in which the lawyer practices. Restatement (Third) of Law Governing Lawyers § 52 cmt. d (2000). (emphasis added). (b) In some situations, lawyers might face disqualification because they engaged in improper marketing tactics. • Samuel Howard, Arent Fox, Elliott Greenleaf Tossed From UBP Ch. 11, Law360 (Nov. 5, 2010), http://www.law360.com/bankruptcy/articles/207257 (disqualifying the law firm of Arent Fox from representing a bankruptcy creditor's committee, because the law firm had solicited creditors to serve on the committee through an intermediary in China). (c) Lawyers violating ethics marketing rules can face ethics sanctions. 9723312.24 2 Lawyer Marketing: An Ethics Guide McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/18) ABA Master • In re Ravith, 919 N.Y.S.2d 141 (N.Y. Sup. Ct. 2011) (suspending for three months a lawyer who directed her paralegal to solicit clients). • In re Sinowski, 720 S.E.2d 597, 597-98, 598 (Ga. 2011) (disbarring two lawyers for using "runners"; "The State Bar alleged that in their practice Respondents utilized 'runners' (non-lawyers who recruit, recommend or direct people to the services of a given lawyer in return for a fee or other compensation from the lawyer)."; "The Review Panel adopted the special master's findings of fact, and Respondents' admissions, that from April 1995 through April 1999 they paid runners to secure clients for them and paid non-lawyers compensation for referrals. They kept a record of those payments in a 'Runner Book.' Although Respondents and the State Bar disagree on the amount and volume of the runner activity, Respondents admit to payments to 46 runners (the State Bar contends it was 54) or $276,025 (as opposed to the State Bar's assertion of $399,733) in 1,376 separate cases (versus the State Bar's assertions of 2,441 cases"). • Neely v. Comm'n for Lawyer Discipline, 196 S.W.3d 174 (Tex. App. 2006) (affirming a three-year suspension for a misleading class action announcement; finding
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