Chapter 1
Lawyer Advertising
1.1 Ethical Issues in Advertising
The ethical rules regarding advertising are found in the *LOCAL AUTHORS: PUT THE CITE TO YOUR PROFESSIONAL RULES OF
CONDUCT HERE. New York Rules of Professional Conduct Part 1200 at Rule
7.1 through Rule 7.5. Common sense should always apply to any advertising or marketing you
decide to do. Keep in mind that the rules of professional conduct are founded in reason. The reason, the big why behind them is to protect the public.
I believe that there is a better approach to creating, and
building the DWI practice of your dreams. First, lose the word advertising.
Advertising has old school connotations of puffery, persuasion, and coercing people
into making a sale. You can spend infinite amount of money on advertising. It
is a mass media interrupt game to place yourself in front of people.
Advertising is the shot gun mentality. Throw enough stuff about yourself out
there and eventually people will hear of you and come running. Many of these
people may or may not have any need of your services when they first see your ads.
I think with a criminal
defense and particularly a DWI defense practice a focused approach is most cost effective.
People no longer wish to be sold to. People facing a DWI are people in trouble.
What they want is someone they can trust. They want someone they can count on. They are seeking a person with a particular skill set. One that hones in on their type of problems and issues. They are seeking a person with expertise. To become the expert, to be perceived as the expert in your area is the goal.
It is far wiser to think education based marketing. If
they perceive you as the expert, as the authority for their problem then your value to them is increased. You are not in
competition with anyone but yourself at this level. You must first define your
practice goals. Who is your perfect DWI client? What type of cases would you love
to serve?
Your USP (Unique Selling Position)
What makes you different? Why should they pick you? You must first define your differentiation.
Out of the all the lawyers in the marketplace why would you be the best fit. My USP is "local, focused, and personal." Your USP should be the top three things that differentiate you from other people.
Certainly private attorneys in the DWI defense area are
competitors in the marketplace. There is never a lack of clients but not everyone is going to be "your" client. Just as some jurors would not be the best jurors for every case. You cannot be all things to all people. As laws become
more strict and the penalties become more harsh, the DWI defense industry will grow.
Attorney marketing is a form of public communication. The public's biggest gripe with attorneys is lack of communication, especially honest communication. You attract people to you or you repel them away with your messages. Using with the public, but it is
also a prime component of our relationship among defense attorneys. Advertising
must be honest and fair. There is nothing in the ethical rules which will
prevent you from advertising in a manner that will bring clients to your door.
In fact, the ethical rules protect the attorney as much as the consumer.
It was the
early 1970’s when a couple of Arizona attorneys changed the national landscape
of the practice of law by advertising a “legal clinic” to the public in a small
and inexpensive printed ad in Phoenix, Arizona. “DO YOU NEED A LAWYER?” is
how the ad began. It was nothing like today’s personal injury ads seen on
national cable and satellite networks which troll for litigants in mass-tort
actions. It was a modest ad for divorce, adoption, bankruptcy and changes of
name with reasonable flat fees. The State Bar of Arizona took action against
the attorneys under the Sherman Act and the Arizona State Bar’s own rules. The
case was appealed to the United States Supreme Court and became known as: Bates
v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2961, 53 L.Ed. 2d
810 (1977).
The United
States Supreme Court found that although lawyer advertising could be regulated
as commercial speech, it could not be barred entirely because of First
Amendment protections. The concerns were that members of the public would be
misled by unscrupulous attorneys and that advertising would degrade the
profession. Mr. Justice Blackmun delivered the opinion of the Court and wrote:
“It is at least somewhat incongruous for the opponents of
advertising to extol the virtues and altruism of the legal profession at one
point, and, at another, to assert that its members will seize the opportunity
to mislead and distort. We suspect that, with advertising, most lawyers will
behave as they always have: They will abide by their solemn oaths to uphold the
integrity and honor of their profession and of the legal system. For every
attorney who overreaches through advertising, there will be thousands of others
who will be candid and honest and straightforward. And, of course, it will be
in the latter’s interest, as in other cases of misconduct at the bar, to assist
in weeding out those few who abuse their trust.” Bates v. State Bar of Arizona,
433 U.S. 350, 379, 97 S. Ct. 2691, 2707, 53 L. Ed. 2d 810 (1977)
*LOCAL AUTHORS: Change rule
numbers and quotes as appropriate, below, but keep the subjects as indicated.
If your state does not have a similar rule, please insert the corresponding ABA
rule. If you think another topic needs to be added, please do so in a logical
order.
Rule 7.1 Advertising
You cannot make any statements that are false, deceptive, or misleading. With that in mind, I believe that the core of lawyer communication has to be the appropriate management of client expectations. Under Rule 7.1 (d) (1) lawyers can make statements that are reasonably likely to create an expectation about results the lawyer can achieve. The problem is many lawyers make extravagant claims. I have seen websites which display a criminal defense lawyer's results as 100% dismissals. Now in a country where over 96% of criminal cases resolve with plea bargains this is the stuff of science fiction.
New York state requires two things with any lawyer advertising. Firstly, that the first page or home page of any website, blog, article, or advertisement must be labeled LAWYER ADVERTISING. Second, that any statement or advertising must be accompanied by the disclaimer PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME.
communication about the
lawyer or the lawyer’s services.” The rule goes on to define a “false or
misleading” communication. Lawyers often get a bad rap in the area of honesty.
Those of us in the profession hear many jokes about our honesty—or lack of
honesty. This hurts us in our presentations to the jury. A simple place to
start changing the public view of attorneys is in our advertising. Simply
stated, if it isn’t true, don’t state it.
ER 7.2 Advertising
Subject to ER 7.1 and ER 7.3,
lawyers may advertise. Lawyers may pay for advertising, pay the usual charges
of a legal services plan or even pay a referral fee to a not-for-profit
qualified lawyer referral service that has been approved by the appropriate
regulatory authority.
Every advertisement must carry the name and office address of
at least one lawyer who is responsible for the content of the advertisement. If
information about the lawyer’s fees is included, then complete details about
contingent fees (including percentages) and responsibility for costs must be
stated. Ranges of fees and fixed fees for specific and routine legal services
must be clearly communicated. If a specific fee is advertised, the price must
be good for at least 90 days unless otherwise specified. If the publication is
such that it is not published more frequently than annually (such as the yellow
pages), then the fees shall be honored for no less than one year after
publication.
Advertisements on electronic media must adhere to the same
rules. Additionally, if the electronic media uses a person appearing as a lawyer,
then that person had better actually be a lawyer at the firm. In other words—do
not use an actor to portray a lawyer in your firm without disclosing such in
the advertisement. Moreover, if that lawyer who appears as the person who will
render the specific services advertised, then that lawyer must be the one who
renders the services or there must be clear disclosure stating that the
services may be performed by other members of the firm.
ER 7.3 Direct contact
with prospective clients
If you know that someone is in
need of your services, and you are not offering your services pro-bono, then
you may not contact the prospective client in person, by telephone or real-time
electronic form unless the person contacted is a lawyer, or has a familial,
close personal or prior professional relationship with you.
Even so, the lawyer may not contact someone if he or she has
made known a desire not to be contacted, or if the solicitation involves
duress, coercion or harassment, or if it relates to personal injury or death
within 30 days of such occurrence.
Every written, recorded or electronic communication from a
lawyer to a prospective client in need shall include the words “Advertising
Material” in a font twice the size of the font in the body of the material, on the
outside of the envelope, if any, and at the beginning and end of any recorded
electronic communication.
If you are going to advertise to those you believe need your
services (such as from a list of DUI arrestees), a written copy must be
forwarded to the Clerk of the Arizona Supreme Court and the State Bar of
Arizona at the Phoenix office.
Direct mail can only be sent by regular U.S. Mail—not by
restricted delivery or by registered mail. If a sample contract is mailed, the
contract shall be marked “sample” in red ink and contain the words “do not
sign” at the signature line, and the lawyer shall bear the burden of proving
the truthfulness of all statements made.
Additionally, the lawyer shall disclose upon request of the
state bar or the recipient: how the identity and specific legal needs of the
recipient were discovered and how they were verified by the soliciting lawyer.
Clearly, this rule is intended to protect the privacy of the public and to
punish lawyers who violate the potential client’s right to privacy.
PRACTICE TIP: Although it may be
perfectly legal and ethical to contact specific people whom you believe need
your services under certain circumstances, don’t do it. The ethical rules
provide a minefield of opportunities to misstep and create a giant ethical
problem for your firm. Moreover, people who need legal services should have the
opportunity to “shop around” rather than retain the first lawyer who contacts
them. In fact, make it a practice to suggest that the person take the opportunity
to contact other attorneys before he or she makes a decision. If the
prospective client likes and trusts you, he will come back to retain you. If
you directly solicit a client known to need your services, that client may
eventually feel “trapped” and look for excuses to find faults with your work.
The ethical rules
regarding advertising contain more detailed and specific information than
contained in this chapter. It is wise to take 15 minutes to read the ethical
rules regarding advertising at least once a year and any time that your firm
chooses to embark on a new ad campaign or use a new media outlet. Fifteen
minutes of reading could save you 20 hours of time dealing with a needless bar
complaint.
ER 7.4 Communication of
fields of practice
A lawyer may communicate the
fact that the lawyer does or does not practice in a specific field of law. We
have all had it happen to us—we advertise that we practice exclusively in the
criminal field and we get calls from people seeking bankruptcy counsel or help
with child-custody issues. Nothing we do will ever stop that from happening.
One way we have cut down on calls for services outside our areas of practice is
by advertising “specialization” in an area. However, one cannot claim
specialization unless one is actually a “specialist” with the state bar or with
a national entity (such as the American Bar Association) with standards
substantially the same as those established by the state bar. If you plan on
advertising that you are a Specialist, either become a specialist through the
State Bar or clear the designation with them prior to using it.
PRACTICE TIP: The National College for DUI Defense, Inc. is the only
organization which grants Board Certification in the specific area of DUI
Defense. Board Certification by the NCDD is extremely difficult to obtain as
their standards usually exceed any state standards for certification in any
area. Board Certification is a nationally-recognized specialty and is
recognized by the American Bar Association. Details and application forms can
be found at www.NCDD.com and it is well-worth examining.
ER 7.5 Firm names and
letterheads
A firm name, letterhead or
personal designation shall not violate ER 7.1, and a lawyer in private practice
may not use a trade name. If there are members of the firm who are not licensed
to practice in a particular jurisdiction where the advertisement is made, the
advertisement shall state such fact.
In the unlikely event that a member of a DUI defense firm holds
public office, that lawyer’s name shall not be used in the name of the law firm
or in communications on its behalf during any substantial period in which the
lawyer is not actively and regularly practicing with the firm. Finally, lawyers
may only state that they are practicing in a firm or other organization if that
is, in fact, the truth.
1.2 Advertising Resources
There are plenty of
media outlets available for advertising purposes. Clearly, the phone book was
the largest source for advertising in the past, but the Internet has now
replaced it as the prime source for advertising. You may certainly find,
however, that there are very specific targeted media in addition to the
Internet which are capable of producing a very good return on the dollar. These
will vary locally and can be found by simply checking out the places that your
target audience frequents.
Phone Book Advertising
There are a few simple
things to keep in mind with any type of phone book advertising. The first
consideration is timing the start of your practice with the publication date of
the phone book. In other words, do not open the doors of your private practice
in October if the phone book is published in September, unless you have
finalized phone book advertising first. If you are going to open your practice
in October, plan on finalizing your advertisement contract in May. The content
of your ad is up to you, but you should listen to your phone book ad
representative. Keep in mind that they receive a commission on the ad, so it is
in that salesperson’s best interest to sell you the largest ad you will
purchase; but also keep in mind that the salesperson has an interest in keeping
you in business. Graphic artists are generally expensive, but hiring a graphic
artist who specializes in advertising is a wise investment. Think of it in
these terms: Should someone accused of a crime defend himself? Certainly not.
You’re probably not a graphic artist, so don’t try it yourself.
There are many different types of phone
books available to consumers. Phone books are cheap to print and they flood the
marketplace nowadays, but have the least impact on client retention. My best
advice is to pick the largest phone book available in your area and place a
mid-sized ad under both the DUI heading as well as the Criminal Defense
heading. Stay away from the large one- or two-page ads at the front of the
directory. Those ads pay off well for civil attorneys doing personal injury,
medical malpractice and bankruptcy. They simply do not work well for criminal
defense and DUI.
Internet Advertising
Internet advertising is one of the best ways that a DUI
attorney can advertise. Be sure to have your website professionally built and
maintained. Many different license agreements are available for attorneys to
ensure that their websites are easily found by various search engines. They
provide easy access for people to your firm on a 24-hour basis. Be sure,
however, to adhere to the following rules: warn potential users not to e-mail
confidential information to you and that you have no attorney-client relationship
via the website. Also ensure that you have not created such a relationship via
the website. There are some attorneys who advertise
on the web with fee agreements available to the public along with methods of
payment via the web. These are things that could create an attorney-client
agreement and cause endless headaches with the state bar.
Links to other
sites can help increase your visibility on the web. Do not be afraid to ask
other attorneys to link sites with your site. Linking to the National College
for DUI Defense, Inc. (NCDD) is a wise thing to do, if you are a member of the
NCDD. (You can find them at www.ncdd.com and join the organization, easily.)
Links to the
National Highway Traffic Safety Administration (NHTSA) will provide potential
and actual clients access to government publications and research regarding
driving, impairment, field sobriety testing and statistical information.
Blogs
and legal postings drive people to websites. Content is what moves your site
further up the chain of results. However, even though blogs and legal postings
may drive people to your site, they must be accurate for two reasons. First,
inaccurate or outdated material will make you look less professional and less
knowledgeable. The second reason to keep it accurate is for ethical purposes.
While there may be no direct ethical rule on-poin
