Legal advertising

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Legal advertising is advertising by lawyers (attorneys at law) and law firms. Legal marketing is a broader term referring to advertising and other practices, such as client relations, cross-selling,[1] public relations and maintaining contact with alumni.

England and Wales[edit]

Legal marketing has been permitted in England and Wales since 1986, when the Law Society of England and Wales first permitted lawyers to advertise. The Financial Services Authority now licences helplines and claims management agencies - except trade unions - which typically advertise and refer claims to lawyers.

European Union[edit]

From the 1990s, other jurisdictions in continental Europe progressively opened way for advertising. Advocates in Spain, France. and Germany are among those able to freely use instruments of communication.

India[edit]

In India, an advocate shall not solicit work or advertise, except through a medium maintained by the Bar Council of India, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his/her photographs to be published in connection with cases in which they have been engaged or concerned. Their sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that they are or have been a President or Member of a Bar Council or of any Association or that they have been associated with any person or organization or with any particular cause or matter or that they specialize in any particular type of work or that they had been a Judge or an Advocate General.S oliciting work or advertise” as used in this clause of the Code would not mean and include setting up of a web-site by an advocate or a law firm giving only basic information about the names and number of lawyers in a law firm, the contact details and areas of practice. This would apply similarly to lawyers’ brochures and law directories.[2]

Under the amended rule, advocates can mention in their chosen websites, their names, telephone numbers, e-mail ID, professional qualification and areas of specialization.[3]

Israel[edit]

In Israel, legal marketing managers in big law firms were active since 2006. Their activity expanded due to the Late-2000s recession which affected law firms, and due to the large number of lawyers per capita in Israel.

Italy[edit]

In Italy, the Bersani Decree of July 2, converted into law in January 2007 gives lawyers the right to advertise.

United States[edit]

Lawyer advertising in the United States is legal, although subject to ethical rules promulgated by state bar associations.[4][5] Commonly encountered forms of lawyer advertising include television and radio commercials,[6] print advertisements,[7] billboards,[8] direct mail marketing,[9] law firm websites, and participation in telephone directories,[10] commercial directories and referral services,[11] and through online advertising and social media.[12]

In 1908, the American Bar Association ("ABA") established its first ethics code, known as the Canons of Professional Ethics, which condemned all advertisement and solicitation by lawyers. Due to the progression of the legal profession and the desire to update the Canons of Professional Ethics, the ABA created the Model Code of Professional Responsibility ("Model Code") in 1969. The Model Code was an effort by the ABA to create practical rules that went "beyond the pretty details of form and manners" and addressed "the chained relationship of the lawyer to his clients, to his professional brethren and to the public."[13]

The first major case law decision on legal advertising is the Supreme Court ruling in Bates v. Arizona State Bar 433 U.S. 350 (1977), in which the United States Supreme Court, held that lawyer advertising is partially protected by the First Amendment.[14] The Supreme Court rejected the argument by the Arizona Bar that attorney advertising was "inherently misleading" and "tarnish the dignified public image of the profession." The Court found "the postulated connection between advertising and the erosion of true professionalism to be severely strained," and noted that "lack of legal advertising could be viewed as the profession's failure to 'reach out and serve the community.'"[15]

The Federal Trade Commission (FTC) responded to the Supreme Court of Alabama's June 26, 2002 invitation to comment on the Alabama Rules of Professional Conduct entitled Information about Legal Services. In this response, the FTC "encourages competition in the licensed professions, including the legal profession, to the maximum extent compatible with other state and federal goals."[16] Additionally, on May 26, 2006, the FTC commented on the State Bar of Texas Professional Ethics Committee's consideration on whether or not it is ethical for a Texas attorney to participate in an online lawyer referral services. The FTC determined that "online legal matching services are a valuable option for Texans: they are likely to reduce the consumers' cost for finding legal representation and have the potential to increase completion among attorneys."[17]

Certain marketing practices are considered illegal, and many others may be considered violations of legal ethics. Shock advertising, for example, would be considered unethical; directly soliciting clients (known as barratry, or "ambulance chasing") is illegal.

The New York and Florida court systems proposed several restrictions on advertising in 2006 and 2007.[18] The N.Y. proposals generated controversy.[19] In 2005, New York State Bar Association President Vincent Buzard appointed a Task Force on Lawyer Advertising, chaired by Bernice K. Leber, to make proposals for consideration by NYSBA and the New York courts.[20]

The new rules for New York were effective on February 1, 2007.[21] For the first time, the New York Legal system defined legal advertising, as:
"any public or private communication made on or behalf of a lawyer or law firm about that lawyer or law firm's services, the primary purpose of which is for the retention of the lawyer or law firm."[22] The new rule specifically exempts communications to existing clients or other lawyers.[23] Publicity is, for the first time, also included as a synonym of advertising.[24] The newly revised rules now allow advertising about a lawyer's publications and "bona fide professional ratings".[25] There are certain special rules for email advertising, prohibiting spam.[26]

The 2007 rules stated that advertising must not include a number of prohibited marketing devices:

  1. Certain endorsements or testimonials from a former client
  2. Portrayal of judges
  3. Paid, undisclosed payment of testimonials
  4. Portrayal of a judge, or fictitious lawyer or law firm
  5. Use of actors or fictionalized persons
  6. Irrelevant characteristics of the lawyers
  7. Ads that resemble legal documents
  8. Certain limits on soliciting new clients for 30 days after a tort
  9. Certain other limits on communications with non-clients
  10. Use of a nickname or moniker.[27]

The new New York rules were challenged, and Judge Frederick J. Scullin of the United States District Court for the Northern District of New York struck down five of the rules as unconstitutional infringement of the First Amendment.[28] The endorsement, portrayals, "Irrelevant characteristics", and nicknames provisions were stricken; however, the domain name limitations, 30-day solicitation, and communications rules were upheld.[29] State Bar President Kathryn Madigan promised to work with the court system to develop new rules that will survive constitutional strict scrutiny.[30]

See also[edit]

References[edit]

  1. ^ "Marketing Monday: are law firms getting smarter using CRM? + infographic". www.legaltechnology.com. Retrieved 1 May 2015.
  2. ^ "Rules on Professional Standards < Bar Council of India". Bar Council of India. Bar Council of India. Retrieved 2015-07-09.
  3. ^ "16 Reasons why Lawyers in India should be allowed to Advertise". Retrieved 2015-08-12.
  4. ^ Lawyer Advertising at the Crossroads. American Bar Association. 1995. ISBN 157073142X.
  5. ^ "Cases on Lawyer Advertising". American Bar Association. Retrieved 5 December 2017.
  6. ^ Sullivan, Joseph F. (20 January 1984). "Jersey Lets its Lawyers Run TV and Radio Ads". New York Times. Retrieved 5 December 2017.
  7. ^ Simon, Roy (February 2007). "Thumbnail Guide to Amended Advertising Rules". New York Legal Ethics Reporter. Retrieved 5 December 2017.
  8. ^ "Billboard Advertisement" (PDF). Statewide Grievance Committee. Connecticut Judicial Branch. 23 February 2010. Retrieved 5 December 2017.
  9. ^ Spahn, Thomas E. (2016). "Lawyer Marketing: An Ethics Guide" (PDF). McGuireWoods LLP. Retrieved 5 December 2017.
  10. ^ Larson, Aaron (21 January 2015). "Should Lawyers Still Advertise in the Yellow Pages". ExpertLaw. Retrieved 5 December 2017.
  11. ^ "Colorado Bar Differentiates Online Directories From Lawyer Referral Services". Hinshaw & Culbertson LLP. 6 January 2011. Retrieved 5 December 2017.
  12. ^ Filisko, G.M. (3 March 2013). "The Ethics of Online Advertising". ABA for Law Students. American Bar Association. Retrieved 5 December 2017.
  13. ^ Olson, Emily, "Ethics of Attorney Advertising: The Effects of Different State Regulatory Regimes, The" Georgetown Journal of Legal Ethics, The (2005) http://heinonline.org/HOL/LandingPage?handle=hein.journals/geojlege18&div=57&id=&page=
  14. ^ Bates v. State Bar of Ariz., 433 U.S. 350, 363-64 (1977).https://www.law.cornell.edu/supct/html/historics/USSC_CR_0433_0350_ZS.html
  15. ^ Haywood, Amy, "Navigating a sea of uncertainty: How existing ethical guidelines pertain to the marketing of legal services over the Internet" The Georgetown Journal of Legal Ethics (July 2001) http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/geojlege14&div=49&id=&page=
  16. ^ Federal Trade Commission, "Response to Alabama Rules of Professional Conduct" (September 2002) http://www.ftc.gov/be/v020023.pdf
  17. ^ Federal Trade Commission, "Comments on a Request for Ethics Opinion Regarding Online Attorney Matching Programs" (May 2006) "Archived copy". Archived from the original on 2009-09-24. Retrieved 2009-09-17.
  18. ^ Law.com article from June 15, 2006 New York Law Journal (N.Y.L.J.) article on NY proposals by John Caher:[1]
  19. ^ Donovan, Karen (2 March 2007). "New York Law Firms Struggle With New Restrictions on Advertising". New York Times. Retrieved 4 December 2017.
  20. ^ Andrew Rush, U.S. District Court: Some advertising rules unconstitutional, State Bar News, September/October 2007, p. 4.
  21. ^ For the full rules, see: [2].
  22. ^ 11 New York Code of Rules and Regulations (N.Y.C.R.R.) part 1200, section 1200.1 (k), found at [3] (requires Acrobat-TM reader).
  23. ^ Id.
  24. ^ 11 N.Y.C.R.R. part 1200, section 1200.6, also known as the Code of Professional Responsibility, Disciplinary Rule (DR) 2-101, found at: [4]
  25. ^ Id., at DR 2-101 (b) (1).
  26. ^ Id., DR 2-101 (b).
  27. ^ DR 2-101 (c), found at [5].
  28. ^ Andrew Rush, U.S. District Court: Some advertising rules unconstitutional, State Bar News, September/October 2007, p. 4.
  29. ^ Andrew Rush, U.S. District Court: Some advertising rules unconstitutional, State Bar News, September/October 2007, p. 4.
  30. ^ NYSBA Press Release