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Guest Post: State Bar Regulations on Lawyer Advertising

by Carolyn Elefant on March 1, 2010 · 23 comments

in Marketing & Making Money, Marketing Ethics, Websites and Blogs

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The following is a guest post by Kelly Spradley, VP of Marketing and Sales at Impirus Legal Websites.

Florida is not looking too sunny for lawyers today. The Florida Bar recently announced that Florida attorneys must put website testimonials, laudatory statements, and past results behind a disclaimer page. Many Florida lawyers currently have testimonials directly cited on their websites, even though the rule went into effect on 1/1/2010. The testimonials will need to be concealed behind a disclaimer page, but it is not clear as to how rapidly it needs to be done. Although Florida lawyers will need to comply with the new rules, they do not have to submit their websites for review.

This is in contrast to Texas where websites do have to be submitted to the State Bar for review. A criminal defense law firm in Houston was recently reprimanded for not submitting its website for review. Lindeman, Alvarado & Frye’s website contained images which were not appropriate for a criminal defense firm. The firm has since removed the images, and paid a $300 fee to the Texas Advertising Review Committee for a belated review.

The Houston firm was having its site revamped, which brings up a point about re-submission to the State Bar of Texas. If a website initially passes muster with the State Bar of Texas Advertising Review Committee, does it need to be re-submitted for review every time the website is updated? This would be a great time and financial constraint on Texas lawyers, as websites today are no longer static advertisements. Some websites are frequently edited, as blog posts or articles are added.

The Texas State Bar does post this question and answer on its site:

“Do I have to submit my advertisement for review every year?

No. Once an ad has been approved by the ARC, the lawyer is not required to resubmit an advertisement unless a substantive modification is made to the ad. According to the ARC, a simple change of street address or numeric phone number does not constitute a substantive change. However, any other addition, deletion or text edit requires that the ad be submitted with a new application form and filing fee.”

According to that answer, it seems as if you do have to re-submit your website each time you add an article or blog post. But an email from Gene Major at the Texas State Bar explains that you do not have to re-submit your website (or blog) if you are adding articles that are educational in nature.

The Texas State bar also requires that internet videos be submitted for approval. The cost is $75 for review. This form of advertising could get expensive. Submit a couple of videos, and you’ve spent more on advertising reviews than on the purchase of a video flip camera.  Lee Rosen is fortunate to live in North Carolina. He markets his law firm with educational videos. The videos are prominently placed on video sharing sites like YouTube. He doesn’t have to submit each video for review as the North Carolina rules state:

“Although prior review of an advertisement is not required by the Rules, the ethics staff of the Bar will provide an advance informal oral opinion on whether an advertisement complies……”

AND

“A lawyer may display truthful information about the lawyer’s legal services on a World Wide Web site accessed via the Internet.”

North Carolina seems to be pretty progressive. But if you cross the border into South Carolina, you do need to submit your websites and videos for filing to the Commission on Lawyer Conduct.

Do you know the advertising rules in your state? The ABA offers this page with a link to each state’s rules.http://www.abanet.org/legalservices/clientdevelopment/adrules/states.html Even if you read your state’s rules, though, you might be left with a lot of questions. Most of the rules do not address advertising with Pay-Per-Click ads, blogs, podcasts, social media sites, and other internet forums.

The people in charge of creating the advertising rules for each state need to update the rules for modern technology. They need to consult with lawyers who are using the internet to advertise, as they are developing the rules. Furthermore, once the rules have been re-defined for the age of the internet, they need to be clearly stated.

Internet marketing is a very effective form of marketing for lawyers, and is typically an affordable form of marketing for solos and small firms. However, when the state advertising rules are not up to date, are cost prohibitive, or are murky it is difficult for lawyers to fully capitalize on internet marketing strategies.

What do you think? Are your state rules on advertising reasonable? Is it easy to stay in compliance with the rules? Do the rules need an overhaul for Web 2.0?

Resources used to write this article:

http://www.floridabar.org/tfb/TFBLawReg.nsf/e0f40af2c23904c785256709006a3713/f0f34ceae87853cc85256b2f006c8848?OpenDocument

http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/C103D838A491419E8525769D005665AF/$FILE/Guidelines%20for%20Firm%20Websites.pdf?OpenElement

http://www.distasiolawfirm.com/testimonials.aspx

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202436082095&No_Defense_for_Law_Firm_Web_Images

  • http://southcarolinacriminaldefenselaw.blogspot.com Ryan Phillips

    I’m in South Carolina, and you’re right by implying the S.C. rules are a little more strict. I do, however, think they are fair (at least the Supreme Court suspended the $50 filing fee for every advertisement). There are no provisions for social media as of yet, but I do think the state Bar is starting to consider what, if any, changes to the professional responsibility rules need to be made to acknowledge the advent of social Web media. However, in South Carolina the judiciary tends to favor changing things slowly, so we’ll see where it leads us. I could foresee them requiring that a blog or other similar site carry a disclaimer or notice that it is affiliated with a law firm or specific lawyer.
    A collateral issue, however (and one which another South Carolina lawyer has blogged about recently) is what to do with lawyers who use blogs to publicize tragedies (for example, plane crash) and identify the victims by name. Typically, the site identifies the victims and then states that the law firm is “deeply saddened” by the tragedy and will keep the victims in their prayers. Then, of course, is the advice that they should contact a lawyer, and wouldn’t you know it, that lawyer practices in this area. I think that will become a big area for possible rule revision here… not sure how it’s being treated elsewhere.

  • http://southcarolinacriminaldefenselaw.blogspot.com Ryan Phillips

    I’m in South Carolina, and you’re right by implying the S.C. rules are a little more strict. I do, however, think they are fair (at least the Supreme Court suspended the $50 filing fee for every advertisement). There are no provisions for social media as of yet, but I do think the state Bar is starting to consider what, if any, changes to the professional responsibility rules need to be made to acknowledge the advent of social Web media. However, in South Carolina the judiciary tends to favor changing things slowly, so we’ll see where it leads us. I could foresee them requiring that a blog or other similar site carry a disclaimer or notice that it is affiliated with a law firm or specific lawyer.
    A collateral issue, however (and one which another South Carolina lawyer has blogged about recently) is what to do with lawyers who use blogs to publicize tragedies (for example, plane crash) and identify the victims by name. Typically, the site identifies the victims and then states that the law firm is “deeply saddened” by the tragedy and will keep the victims in their prayers. Then, of course, is the advice that they should contact a lawyer, and wouldn’t you know it, that lawyer practices in this area. I think that will become a big area for possible rule revision here… not sure how it’s being treated elsewhere.

  • http://www.impirus.com/ Kelly Spradley

    Ryan,
    Thanks for the comment. I have heard of the type of blogging that you are referring to, and I have also heard of personal injury lawyers spamming blog comments. Ann Althouse talks about this in her blog post: http://bit.ly/crSyvO
    From what I understand the lawyer searches for words such as “accident”and “fatal.” Once a blog with those words is returned, the lawyer offers his condolences and a link to his site in the comment area. It am not sure how the Lawyer Advertising Rules could address this type of behavior.

  • http://www.impirus.com/ Kelly Spradley

    Ryan,
    Thanks for the comment. I have heard of the type of blogging that you are referring to, and I have also heard of personal injury lawyers spamming blog comments. Ann Althouse talks about this in her blog post: http://bit.ly/crSyvO
    From what I understand the lawyer searches for words such as “accident”and “fatal.” Once a blog with those words is returned, the lawyer offers his condolences and a link to his site in the comment area. It am not sure how the Lawyer Advertising Rules could address this type of behavior.

  • http://www.attorneydisabilityinsurance.com Disability Insurance

    I can only imagine how the attorney’s in Florida are dealing with this decision. I think, and pretty sure that we would all agree, that client referrals and word of mouth are the best source of new clients. With small firms, sometimes it can be hard to come up with a ton of referrals, and internet covers the rest. This is a huge move, and a rough one to deal with in Florida, I’m sure.

  • http://www.attorneydisabilityinsurance.com Disability Insurance

    I can only imagine how the attorney’s in Florida are dealing with this decision. I think, and pretty sure that we would all agree, that client referrals and word of mouth are the best source of new clients. With small firms, sometimes it can be hard to come up with a ton of referrals, and internet covers the rest. This is a huge move, and a rough one to deal with in Florida, I’m sure.

  • http://www.oginski-law.com Gerry Oginski

    Carolyn,
    You raise a very interesting issue that should really be a non-issue for attorneys throughout the country.
    You would think that attorneys would use the Internet as an educational tool to let people know what they do and how they do it. Unfortunately, not every attorney has the same vision of new technology and what it can do for them and the public.
    Bar associations have typically lagged way behind technology advances and constantly struggle to adapt to new types of lawyer marketing.
    While it is understandable that bar associations want to keep a tight rein on the quality of attorney advertisements in general, those jurisdictions that impose fees to review each advertisement, video or blog posting creates another obstacle for lawyers to create useful and educational messages for the public. The reality is that social media is a dynamic and fluid ever-changing media.
    If more attorneys used the Internet and social media to educate the general public rather than to blatantly use the same clichéd slogans that we have been hearing for more than 30 years on late-night and daytime TV, it would benefit us all.
    One of the best tools available to communicate with online viewers and potential clients is the use of video. Lawyers are now becoming more proficient in creating video. Those jurisdictions that require fees to have every video reviewed will make it cost-prohibitive to create educational messages that will benefit the public.
    Most online viewers are savvy enough to recognize the distinction between a lawyer that is self-promoting and one that is providing an educational message.

  • http://www.oginski-law.com Gerry Oginski

    Carolyn,
    You raise a very interesting issue that should really be a non-issue for attorneys throughout the country.
    You would think that attorneys would use the Internet as an educational tool to let people know what they do and how they do it. Unfortunately, not every attorney has the same vision of new technology and what it can do for them and the public.
    Bar associations have typically lagged way behind technology advances and constantly struggle to adapt to new types of lawyer marketing.
    While it is understandable that bar associations want to keep a tight rein on the quality of attorney advertisements in general, those jurisdictions that impose fees to review each advertisement, video or blog posting creates another obstacle for lawyers to create useful and educational messages for the public. The reality is that social media is a dynamic and fluid ever-changing media.
    If more attorneys used the Internet and social media to educate the general public rather than to blatantly use the same clichéd slogans that we have been hearing for more than 30 years on late-night and daytime TV, it would benefit us all.
    One of the best tools available to communicate with online viewers and potential clients is the use of video. Lawyers are now becoming more proficient in creating video. Those jurisdictions that require fees to have every video reviewed will make it cost-prohibitive to create educational messages that will benefit the public.
    Most online viewers are savvy enough to recognize the distinction between a lawyer that is self-promoting and one that is providing an educational message.

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  • Lauren

    RE: South Carolina – That actually used to be the rule, but the Court has amended the Rules of Professional Conduct.

     

    You must keep a copy on file that you are able to produce and print out, or download, if requested.  See Rules 7.1, 7.2 and 7.3 of the SC Rules of Professional Conduct… link  to 7.2 is below.

     

    http://www.sccourts.org/courtReg/displayRule.cfm?ruleID=407.0&subRuleID=RULE%207%2E2&ruleType=APP

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