My Shingle

Is Your Law Firm or #AltLaw Violating the Lanham Act?

by Carolyn Elefant on February 6, 2014 · 3 comments

in Ethics Issues, Marketing Ethics

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I’ve often wondered whether a firm that lacked competency in certain practice areas could nonetheless, advertise these capabilities “on spec,” figuring that it could either refer the work out or hire a temporary lawyer to handle these matters if they came through the door. I’ve seen this tactic used occasionally by the #Altlaw law firms or non-law firm entities; for example, they will claim to have energy expertise (one of my practice areas) — but when I look at the roster of names on the firm website, I don’t see any lawyers qualified to handle energy matters.

Though it’s not clear whether this practice is sufficiently deceptive to violate ethics rules, claiming expertise where it’s lacking may run afoul of the Lanham Act. In December 2013, a Pennsylvania federal district court ruled that a law firm could proceed with a suit against its competitor. The firm argued that its competitor violated the Lanham Act by advertising that it handled social security cases even though it referred the cases to other firms to handle. The court found that this conduct, if proven, would constitute a deceptive practice under the Lanham Act.

I’ve always believed that the first and last commandment of lawyer advertising (and every one in between) is NO DECEPTION. So long as lawyers stick to this simple rule, they’ll comply with both the Lanham Act and applicable ethics obligations.

  • Byron Warnken

    This is a widespread issue throughout the country. Previous experience with even one case, or even the ability to potentially handle one case, with or without co-counsel, might be enough to resolve this dispute in Lundy’s favor. If not, where is the line? Because the other side of the coin is no referrals. This is an interesting case.

  • myshingle

    Couldn’t the firm just be forthright about affiliations up front? Let consumers know that they may refer cases? That wold solve it as would your approach. The anti trust issue received the lions share if attention so this issue went unnoticed

  • Byron Warnken

    Absolutely. Do you think this is sufficient… While ______Law Firm, LLC maintains joint responsibility, most cases are referred to other attorneys for principal responsibility.

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