Speed Traps and Potholes: Avoiding Communications Hazards

Whether a firm keeps the pedal to the metal or travels at a more steady pace, effective communications can build profits, promote growth and create demand. But it is important to remember that marketing and public relations materials must comply with the rules of the road, lest firms find themselves in trouble with the law.

To help law firms avoid potholes and speed traps, marketing professionals should arm themselves with road maps that include not only the locations of their target audiences, but also the rules of professional conduct for each jurisdiction that their messages will reach.

Rules of the Road

In plotting a message's journey, legal marketers must remember that the rules of professional conduct govern all communications, including advertisements, press releases and one-on-one communications such as e-mail.

Because AAA doesn't offer ethics road maps, the American Bar Association's Model Rules of Professional Conduct are a good place to start. Detailed information about the rules is accessible from the ABA's Center for Professional Responsibility, which can be found at www.abanet.org/cpr.

Like the rules of the road, the rules of professional conduct vary from state to state. Though some states have adopted the model rules verbatim, wise marketers will compare their own state's requirements to the model rules via Cornell University Law School's Legal Information Institute, located online at http://straylight.law.cornell.edu/ethics/comparative/index.htm.

In mapping out a firm's communications course, marketing professionals must first ask where a message will be seen or heard. Will it travel cross-country, or remain firmly within one state? The model rules, for example, prohibit attorneys from communicating their legal services to potential clients outside of jurisdictions in which they are admitted to practice.

On the Road

Once target locales and their rules have been identified, the firm's message and its mode of transport must be considered.

Rule 7.1 is the first of the model rules to address information about legal offerings. The rule covers “all communications about a lawyer's services,” and states that attorneys shall not make false or misleading communications about themselves or the services they provide.

According to the rule, messages are false or misleading if they contain material misrepresentations ' or omissions ' of fact or law.

The comments to Rule 7.1 indicate that communications may neither cause unjustified expectations about possible results, nor present unsubstantiated comparisons between lawyers' services and fees. The comments also note that truthful statements are misleading if they will likely lead recipients to reach a specific conclusion about an attorney or his or her services that lacks a reasonable factual foundation.

Thus, lawyers may hear sirens if they make subjective claims when communicating with potential clients. While an attorney may advertise “12 years of experience in handling divorce litigation,” statements such as “expert in handling divorce litigation,” or “highly qualified,” are risky under the rules.

Arriving at Model Rule 7.2, marketers learn that lawyers may use written, recorded or electronic communications to advertise their services. Such advertisements must include the name and office address of at least one attorney or law firm responsible for the message's content.

Under the rule, citations may be issued to any firm that pays for an endorsement, although firms are permitted to pay the “usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service.”

According to Comment 7.2[3], some jurisdictions have prohibited television advertising, and advertising that extends beyond certain facts about an attorney.

As evidenced by Comment 7.2[3], individual states' rules may be more detailed than the model rules. In Pennsylvania, for example, Rule 7.2 states that attorneys must keep a copy or recording of an advertisement for two years after its dissemination, along with a record of when and where the material was used.

The Pennsylvania rule also dictates that a non-lawyer “shall not portray a lawyer or imply that he or she is a lawyer in any advertisement or public communication.”

Potential roadblocks to ethical and effective communications are not, of course, limited to the content of Rules 7.1 and 7.2. Those “no solicitation” signs commonly seen on city streets apply to lawyers, too.

With two exceptions, Model Rule 7.3 prohibits attorneys from soliciting employment from prospective clients either in person, by telephone or via real-time electronic contact, such as a chat room. Such conduct is permissible, however, if the individual contacted is either a lawyer, or has a “family, close personal or prior professional relationship” with the soliciting attorney.

Among other restrictions, the rule states that all “written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client … shall include the words 'Advertising Material' on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication” falls within one of the above exceptions.

According to Comment 7.3[7], the “advertising material” requirement does not apply to communications sent in response to direct requests from potential clients. Further, the comment indicates that general announcements such as those advising recipients of changes in personnel or office location do not constitute solicitations of professional employment.

Additional rules to consider include Rules 7.4 and 7.5. Model Rule 7.4 addresses fields of practice and specialization in legal messages, while Model Rule 7.5 covers what may and may not be listed on firm letterhead, as well as the use of trade names.

Going Off-Road

Web sites, search engine optimization ' such as linking a firm's Web site to other Web sites ' e-mail solicitations and Internet blogs are all gray areas of ethical legal marketing; much like the unmarked roads not noted on your map.

The ABA's Center for Professional Responsibility provides best practices guidelines for legal Web sites. The guidelines advise Web site providers to specify the jurisdictions in which their legal content applies. According to the guidelines, non-lawyers “often have little or no understanding of the legal concept of jurisdiction. They may be unaware that laws can vary from state to state or in some cases from country to country.” Thus, Web site providers that display “generic legal content” should clearly indicate that the information might not apply in a user's jurisdiction, the guidelines state.

Among other issues, the five-page guidelines also address links to additional resources, notice that legal information does not constitute legal advice and terms of use. The guidelines may be downloaded at www.elawyering.org/tools/practices.shtml.

Clearly it is easy to lose one's way or blow through a speed trap when issuing communications on behalf of lawyers. In addition to reviewing the rules in targeted jurisdictions, marketing professionals and practitioners may wish to look to www.legalethics.com, www.aprl.net and FindLaw's ethics and professional responsibility page, available at www.findlaw.com/01topics/14ethics/publications.html, for more guidance.

When marketers are armed with adequate road maps, their messages can safely embark on the open road.

Whether a firm keeps the pedal to the metal or travels at a more steady pace, effective communications can build profits, promote growth and create demand. But it is important to remember that marketing and public relations materials must comply with the rules of the road, lest firms find themselves in trouble with the law.

To help law firms avoid potholes and speed traps, marketing professionals should arm themselves with road maps that include not only the locations of their target audiences, but also the rules of professional conduct for each jurisdiction that their messages will reach.

Rules of the Road

In plotting a message's journey, legal marketers must remember that the rules of professional conduct govern all communications, including advertisements, press releases and one-on-one communications such as e-mail.

Because AAA doesn't offer ethics road maps, the American Bar Association's Model Rules of Professional Conduct are a good place to start. Detailed information about the rules is accessible from the ABA's Center for Professional Responsibility, which can be found at www.abanet.org/cpr.

Like the rules of the road, the rules of professional conduct vary from state to state. Though some states have adopted the model rules verbatim, wise marketers will compare their own state's requirements to the model rules via Cornell University Law School's Legal Information Institute, located online at http://straylight.law.cornell.edu/ethics/comparative/index.htm.

In mapping out a firm's communications course, marketing professionals must first ask where a message will be seen or heard. Will it travel cross-country, or remain firmly within one state? The model rules, for example, prohibit attorneys from communicating their legal services to potential clients outside of jurisdictions in which they are admitted to practice.

On the Road

Once target locales and their rules have been identified, the firm's message and its mode of transport must be considered.

Rule 7.1 is the first of the model rules to address information about legal offerings. The rule covers “all communications about a lawyer's services,” and states that attorneys shall not make false or misleading communications about themselves or the services they provide.

According to the rule, messages are false or misleading if they contain material misrepresentations ' or omissions ' of fact or law.

The comments to Rule 7.1 indicate that communications may neither cause unjustified expectations about possible results, nor present unsubstantiated comparisons between lawyers' services and fees. The comments also note that truthful statements are misleading if they will likely lead recipients to reach a specific conclusion about an attorney or his or her services that lacks a reasonable factual foundation.

Thus, lawyers may hear sirens if they make subjective claims when communicating with potential clients. While an attorney may advertise “12 years of experience in handling divorce litigation,” statements such as “expert in handling divorce litigation,” or “highly qualified,” are risky under the rules.

Arriving at Model Rule 7.2, marketers learn that lawyers may use written, recorded or electronic communications to advertise their services. Such advertisements must include the name and office address of at least one attorney or law firm responsible for the message's content.

Under the rule, citations may be issued to any firm that pays for an endorsement, although firms are permitted to pay the “usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service.”

According to Comment 7.2[3], some jurisdictions have prohibited television advertising, and advertising that extends beyond certain facts about an attorney.

As evidenced by Comment 7.2[3], individual states' rules may be more detailed than the model rules. In Pennsylvania, for example, Rule 7.2 states that attorneys must keep a copy or recording of an advertisement for two years after its dissemination, along with a record of when and where the material was used.

The Pennsylvania rule also dictates that a non-lawyer “shall not portray a lawyer or imply that he or she is a lawyer in any advertisement or public communication.”

Potential roadblocks to ethical and effective communications are not, of course, limited to the content of Rules 7.1 and 7.2. Those “no solicitation” signs commonly seen on city streets apply to lawyers, too.

With two exceptions, Model Rule 7.3 prohibits attorneys from soliciting employment from prospective clients either in person, by telephone or via real-time electronic contact, such as a chat room. Such conduct is permissible, however, if the individual contacted is either a lawyer, or has a “family, close personal or prior professional relationship” with the soliciting attorney.

Among other restrictions, the rule states that all “written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client … shall include the words 'Advertising Material' on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication” falls within one of the above exceptions.

According to Comment 7.3[7], the “advertising material” requirement does not apply to communications sent in response to direct requests from potential clients. Further, the comment indicates that general announcements such as those advising recipients of changes in personnel or office location do not constitute solicitations of professional employment.

Additional rules to consider include Rules 7.4 and 7.5. Model Rule 7.4 addresses fields of practice and specialization in legal messages, while Model Rule 7.5 covers what may and may not be listed on firm letterhead, as well as the use of trade names.

Going Off-Road

Web sites, search engine optimization ' such as linking a firm's Web site to other Web sites ' e-mail solicitations and Internet blogs are all gray areas of ethical legal marketing; much like the unmarked roads not noted on your map.

The ABA's Center for Professional Responsibility provides best practices guidelines for legal Web sites. The guidelines advise Web site providers to specify the jurisdictions in which their legal content applies. According to the guidelines, non-lawyers “often have little or no understanding of the legal concept of jurisdiction. They may be unaware that laws can vary from state to state or in some cases from country to country.” Thus, Web site providers that display “generic legal content” should clearly indicate that the information might not apply in a user's jurisdiction, the guidelines state.

Among other issues, the five-page guidelines also address links to additional resources, notice that legal information does not constitute legal advice and terms of use. The guidelines may be downloaded at www.elawyering.org/tools/practices.shtml.

Clearly it is easy to lose one's way or blow through a speed trap when issuing communications on behalf of lawyers. In addition to reviewing the rules in targeted jurisdictions, marketing professionals and practitioners may wish to look to www.legalethics.com, www.aprl.net and FindLaw's ethics and professional responsibility page, available at www.findlaw.com/01topics/14ethics/publications.html, for more guidance.

When marketers are armed with adequate road maps, their messages can safely embark on the open road.