Marketing - Frequently Asked Questions

What ethical duties involve marketing?

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Check the local rules for any variations in the rules and their interpretation.

Model Rule 7.1: Communication Concerning a Lawyer's Service

  • When drafting marketing materials, lawyers are required to follow the ethical rules governing communications about the legal services provided.1 Obviously, false or misleading statements, and material misrepresentations or omissions, should be avoided at all costs.2 In addition, the rules make clear that even truthful statements, if misleading in some way, are a form of unethical communication.3 Check the local rules for variations in the rules and their interpretation

Model Rule 7.2: Advertising

  • Lawyers can advertise legal services in “written, recorded or electronic communication, including public media.”4 All marketing disseminated to others outside of the law office must disclose the name and office address of at least one of the lawyers responsible for its content.5
  • As a general rule, lawyers should avoid exchanging anything of value for a recommendation.6 This is especially important in today’s social media environment since many websites offer widely used recommendation features.
  • See “Technology” for further discussion of the new ethical quandaries posed by social media and other emerging technologies.

Model Rule 7.3: Direct Contact with Prospective Clients

  • In most circumstances, lawyers are prohibited from soliciting clients for a fee through “in-person, live telephone or real-time electronic contact.”7 Even where exceptions exist, lawyers must respect a prospective client’s wishes to no longer be contacted, and the solicitation cannot involve coercion, duress, or harassment.8 The difference between solicitation and advertising is that solicitation involves direct contact with a specific person or group for employment purposes and advertising is targeted at the general public.
  • Lawyers are still permitted to market their services to prospective clients as long as the communication does not occur in real-time, and the communication must be formatted as “advertising material.”9 In general, according to ABA rules, “[e]very written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication.”10 As always, check the local rules.

Model Rule 7.4: Communication of Fields of Practice and Specialization

  • Lawyers marketing specialties raise unique ethical concerns.11 While lawyers are allowed to advertise their practice areas,12 they may not advertise a specialty or certification unless they are properly certified as a specialist by the requisite state authority or accredited organization, and they must name the certifying body.13

Model Rule 7.5: Firm Names and Letterhead

  • Ethical rules impose certain limitations regarding what name a firm can use, and the firm’s use of a letterhead.14 For example, although the law firms can use a trade name,15 the name cannot be misleading or imply a connection with a government agency or a public or charitable legal services organization.16
  • Multistate law firms must follow certain rules when using the same firm name in several jurisdictions.17 Marketing that uses the names of lawyers located at a particular office (including the firm letter head), must specify which lawyers are not licensed in that jurisdiction.18 Nonetheless, a multistate law firm is permitted to use a single same firm name, web address, or other professional designations throughout all jurisdictions where it practices.19
  • If a lawyer in a law firm becomes a public official, his or her law firm must remove the lawyer’s name from the firm name, or from any communications on the firm’s behalf, until the lawyer resumes regular, active practice.20
  • Marketing cannot imply that lawyers are in a partnership, or are associated with another lawyer in a law firm, when they are not.21 This rule is especially important where unassociated lawyers share office space - avoid misleading signage that may create the false impression that a law firm exists.22
  • The firm name and letterhead must also comply with the previously discussed ethical rules governing communications about a lawyer’s services.23
  • See “Model Rule 7.1: Communications Concerning a Lawyer’s Services” for more information.

1 See generally MODEL RULES OF PROF’L CONDUCT R. 7.1 (1983) (amended 2013).

2 See MODEL RULES OF PROF’L CONDUCT R. 7.1 (1983) (amended 2013).

3 See MODEL RULES OF PROF’L CONDUCT R. 7.1 cmt. 2 (1983) (amended 2013); MODEL RULES OF PROF’L CONDUCT R. 7.1 cmt. 3 (1983) (amended 2013).

4 See MODEL RULES OF PROF’L CONDUCT R. 7.2(a) (1983) (amended 2013).

5 See MODEL RULES OF PROF’L CONDUCT R. 7.2(c) (1983) (amended 2013).

6 See MODEL RULES OF PROF’L CONDUCT R. 7.2(b) (1983) (amended 2013).

7 See MODEL RULES OF PROF’L CONDUCT R. 7.3(a) (1983) (amended 2013).

8 See MODEL RULES OF PROF’L CONDUCT R. 7.3(b) (1983) (amended 2013).

9 See MODEL RULES OF PROF’L CONDUCT R. 7.3(c) (1983) (amended 2013).

10 See MODEL RULES OF PROF’L CONDUCT R. 7.3(c) (1983) (amended 2013).

11 See generally MODEL RULES OF PROF’L CONDUCT R. 7.4 (1983) (amended 2013).

12 See MODEL RULES OF PROF’L CONDUCT R. 7.4(a) (1983) (amended 2013).

13 See MODEL RULES OF PROF’L CONDUCT R. 7.4(d) (1983) (amended 2013).

14 See generally MODEL RULES OF PROF’L CONDUCT R. 7.5 (1983) (amended 2013).

15 See MODEL RULES OF PROF’L CONDUCT R. 7.5(a) (1983) (amended 2013).

16 See MODEL RULES OF PROF’L CONDUCT R. 7.5(a) (1983) (amended 2013).

17 See MODEL RULES OF PROF’L CONDUCT R. 7.5(b) (1983) (amended 2013).

18 See MODEL RULES OF PROF’L CONDUCT R. 7.5(b) (1983) (amended 2013).

19 See MODEL RULES OF PROF’L CONDUCT R. 7.5(b) (1983) (amended 2013); MODEL RULES OF PROF’L CONDUCT R. 7.5 cmt. 1 (1983) (amended 2013).

20 See MODEL RULES OF PROF’L CONDUCT R. 7.5(c) (1983) (amended 2013).

21 See MODEL RULES OF PROF’L CONDUCT R. 7.5(d) (1983) (amended 2013).

22 See MODEL RULES OF PROF’L CONDUCT R. 7.5 cmt. 2 (1983) (amended 2013).

23 See MODEL RULES OF PROF’L CONDUCT R. 7.5(a) (1983) (amended 2013).

 

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Information provided by Attorney Protective is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. These best practices are not intended to meet or establish the standard of care, and sometimes recommend practices that exceed the standard of care. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of Attorney Protective's Best Practice Database have been carefully researched, Attorney Protective makes no warranty as to the accuracy, applicability or timeliness of the content. Anyone wishing to reproduce any part of the Attorney Protective Best Practices Database content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to erin.mccartney@attorneyprotective.com. Additionally the rules cited in the contents of this database may have since changed. You should check the laws and model rules in your state for specific information on the topics addressed here.