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Advertising rules for the 21st century

By Diane Karpman

Diane Karpman
Karpman

Thirty years ago, the Supreme Court announced the principles regarding lawyer advertising in the seminal case of Bates vs. State Bar of Arizona (1977) 433 U.S. 350. Bates clearly stated that lawyer advertising must not be false, deceptive or misleading.

From these three simple ideas, all 50 states have crafted ever more Byzantine and complex rules. It is nearly impossible to comply, especially on the Internet, because many of the rules are contradictory. A handful of states even mandates preapproval of all ads. If a blog is categorized as a lawyer ad, preapproval is virtually impossible.  States have different retention policies, label requirements and even type size. Rules regulate content like testimonials, comparisons and monikers (“pit bulls,” “heavy hitters”). Recently, New York attempted to prohibit pop-ups in electronic advertisements and lawyers in Florida were reprimanded for comparing themselves to pit bulls.

Ironically, grievances filed for advertising violations are almost always generated by other lawyers, who might consider the ads to be poaching their market share or who are keen arbiters of “taste.”

Our advertising rules were designed for print media and never anticipated phenomena like YouTube or Second Life. Half of the lawyer ads on YouTube spoof the profession, just like our ever-popular fake television news shows. Parody and satire are inherently confusing until you “get it.” Poking fun at yourself could be confusing to a consumer, but it is healthy for the profession. Second Life, a virtual world, has about four million “people” participating. You don’t have to take “human form,” and can be an avatar like a pit bull, and note, there is a Second Life Bar Association.

In 1995, about eight law firms had Web sites and there was no Google. Today, there are billions of people with e-mail addresses and who regularly surf the Internet.

How can you take advantage of the amazing marketing potential of the Internet? Reportedly, the Internet is the first place clients look for lawyers. Obviously, comply with your home state regulations. Include whatever disclaimer should appear. It would be a good idea to say that the ad does not create an attorney-client relationship, or protect any confidential information until a written agreement is signed. Ethics committees in California, New York and Arizona suggest that without a disclaimer, the lawyer is implicitly creating an attorney-client relationship with those who send e-mail. However, see Barton vs. Dist. Court (9th Cir. 2005) 410 F. 3d 1104 for a different approach. State that the ad is void where prohibited by law, so that you don’t run afoul of other state’s rules.

Remember that the subtext of Bates was that the public needs to be able to find a lawyer, obtain accurate information, and make informed decisions about legal services. You can truthfully communicate facts about your professional services and still have a sense of humor. But be careful: remember that the father of commercial spam was a lawyer named Laurence Canter. He was disbarred from Tennessee in 1997 for sending prodigious amounts of e-mail promoting Green Cards, in addition to other questionable conduct.

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