LAWYER COMMUNICATIONS AND MARKETING: AN ETHICS PRIMER Hypotheticals and Analyses* Presented by: Leslie A.T. Haley Haley Law PLC With appropriate credit authorship credit to: Thomas E. Spahn McGuireWoods LLP Copyright 2014 i TABLE OF CONTENTS Hypo No. Subject Page Standards for Judging Lawyer Marketing 1 Possible Sanctions ....................................................................................... 1 2 Constitutional Standard ............................................................................... 8 3 Reach of State Ethics Rules: General Approach ...................................... 33 4 Reach of State Ethics Rules: Websites ..................................................... 38 General Marketing Rules: Content 5 Prohibition on False Statements ................................................................. 42 6 Self-Laudatory and Unverifiable Claims ..................................................... 49 7 Depictions ..................................................................................................... 65 8 Testimonials and Endorsements................................................................. 72 Law Firm Marketing 9 Law Firm Names ........................................................................................... 80 10 Law Firm Trade Names and Telephone Numbers ...................................... 100 11 Law Firm Associations and Other Relationships ...................................... 109 Individual Lawyer Marketing 12 Use of Individual Titles ................................................................................. 114 13 Areas of Practice .......................................................................................... 121 14 Use of Terms Like "Expert" and "Authority" .............................................. 133 15 Inclusion in Honorary Lists Such as "Best Lawyers in America" and "Super Lawyers" ................................................................................... 136 16 Past Successes ............................................................................................ 148 ii Hypo No. Subject Page Other Marketing Techniques 17 Referral Arrangements ................................................................................. 158 18 Money-Back Guarantees .............................................................................. 163 Direct Mail 19 General Rules for Direct Mail ....................................................................... 164 In Person and Telephonic Marketing (Solicitation) 20 Different State Rules Governing Solicitation ............................................. 177 New Forms of Marketing Using Electronic Communications and the Internet 21 Law Firm Websites: Content ...................................................................... 190 22 Websites Offering Legal Advice but Attempting to Disclaim an Attorney-Client Relationship ....................................................................... 197 23 Law Firm Domain Names and URLs ........................................................... 200 24 "Virtual" Law Firms ...................................................................................... 204 25 Lawyers' Favorable Reviews on Other Websites ....................................... 209 26 Intruding Into Other Law Firms' Internet Marketing .................................. 212 27 Internet Referral Arrangements ................................................................... 214 28 Firms' Joint Advertisements ........................................................................ 221 29 Lawyers' Use of Social Media in Their Marketing ...................................... 223 30 Lawyers Blogs .............................................................................................. 226 31 Daily Deals .................................................................................................... 229 32 New Forms of Marketing Using Automatic Means ..................................... 238 33 Texting and Social Media Postings ............................................................. 242 34 Characterizing the Intrusiveness of Electronic Marketing ........................ 247 iii 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 1 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. 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). 2 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 that the lawyer could not rely on the First Amendment to prevent discipline). In contrast, most courts do not recognize private causes of action for ethics rules violations. Rose v. Winters, Yonker & Rousselle, P.S.C., 391 S.W.3d 871, 873, 874, 874-75 (Ky. Ct. App. 2012) (holding that clients could not pursue a private cause of action against their lawyer under the ethics rule requiring lawyers to forfeit any fees they earn in cases they obtained through improper solicitation; "[T]here were no allegations made in the complaint that the Appellees were negligent in handling the Appellants' personal injury claims or in negotiating the settlements. Instead, the Appellants' claims are based on violations of the Kentucky Supreme Court Rules of Professional Conduct. We are unaware of any authority supporting this type of cause of action."; "'If a lawyer illegally or unethically solicited a client for which compensation is paid or payable, all fees arising from such transaction shall be deemed waived and forfeited and shall be returned to the client. A civil action for recovery of such fees may be brought in a court of competent jurisdiction.'" (citation omitted); "As correctly noted by the trial court, the language of SCR 3.130(7.10) appears to presuppose that the appropriate disciplinary agency must first determine whether the lawyer illegally or unethical solicited a potential client in