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Marketing on the Internet, following rules

By Diane Karpman

Diane Karpman

In the minds of many lawyers, advertising creates shoddy, distasteful images, like the ads on the back of bus benches or in the Penny- Saver. Those elite, tassel-shoed thinkers miss the subtext of the seminal Bates v. State Bar of Arizona 433 U.S. 350 (1977) decision, which authorized lawyers’ ads. That idea is that the public needs to be able to find lawyers, obtain accurate information and make informed decisions about legal services. Without lawyers, the plethora of guaranteed legal rights of this country are meaningless.

Let’s not point fingers or criticize lawyers who advertise, because yes, they are trying to make a living, but they also are providing a service to those looking for a lawyer.

Remember, all lawyers advertise, because even our simple business cards or embossed stationery (remember that), fall within the penumbra of Rule 1-400 and must be true, accurate and not confusing.

This is one area of legal ethics that is becoming overly engineered, demonstrating a trend toward greater prohibitions with states enacting differing and increasingly complex regulations. A handful of states now require screening, which means regulators must make a preliminary affirmative determination regarding compliance (Florida, Kentucky, Texas, Nevada and, soon, Louisiana.) Above and beyond the concept of prior restraints on speech, these prohibitions would seem to be antithetical in our global community, where lawyers troll the Internet for clients.

Business and Professions Code §6157 applies to a communication disseminated by television, radio or print. On its face, the act does not include Internet videos like YouTube. This controversial statute has never been tested, because few lawyers want to become a “reported” decision.

This act was brought to you by the Consumer Attorneys (formerly Trial Lawyers), who believed that some lawyers with big budgets were monopolizing the market. Nobody in 1993 anticipated the free availability of YouTube, Web pages and the Internet and the impact they would have on lawyer ads. Reportedly, the Internet is the first place clients look for lawyers.

How can you take advantage of the amazing marketing potential of the Internet? Obviously, comply with the rules of your home state and any targeted states that would be predominantly affected. That way, if some remote consumer inadvertently views the ad, you could show that you attempted to comply in good faith with the regulations of the intended state and could not generally anticipate “spill over” viewing.

Some authorities think that an old- time warning, like those appearing on sweepstakes or cereal boxes, might address the states that require screening, such as “void where prohibited by law.”

Improper solicitations have resulted in disciplinary sanction for lawyers not admitted in the proper jurisdiction. A famous newscaster’s spouse was disciplined for soliciting airplane crash victims in a state where he was not admitted.

Ironically, grievances filed for advertising violations are almost always generated by other lawyers who view the ads to be poaching their market share or consider themselves to be keen arbiters of taste. So if you are trying to harvest in someone else’s vineyard, be careful.

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