Communication is permitted. Solicitation is not. For example, if you are targeting H.R. managers for Labor and Employment work, you may write to them or advertise to them (in compliance with all relevant regulations). Moreover, if they approach your law firm, you are free to call or visit them.
However, if you have no family or professional relationship with them, you may not stop by their offices, or call them on the telephone. Moreover, if you learn that one of these companies has just been sued, and you know that they have already assigned the matter to an attorney, you may not pursue that particular matter, unless the client approaches you first.
When a recipient receives a communication from an attorney --- a direct mail letter, print ad, Web link, newsletter, etc. --- the attorney must inform the recipient that the communication is about the availability of services. The front of the envelope, and the first page of the document, must state "Advertisement," "Newsletter" or words of similar import (the ones in the letter must be in 12-point font). Otherwise, the recipient may think they are being sued, subpoenaed or otherwise notified of a legal action. If a marketing communication is mistaken for a legal action, whether deliberate or unintentional, it can induce a response. The State Bar wants to prevent such inducements.
II. BASIC PREMISES OF ETHICS RULES: Communications must not be false or misleading, they must not misrepresent laws or facts, omit necessary facts, or compare the attorney to another attorney, unless that comparison can be factually substantiated. They must not create unjustified expectations of results. In some states, superlatives such as "experienced," "expert," "highly qualified," "competent," "intelligent", "aggressive", and "proven" can draw the State Bar's attention. It is best to stick with facts and credentials.
Client testimonials and endorsements are another issue. They can mislead the reader into thinking that he or she will have the same results as did the endorsing client. In California, these testimonials must include a disclaimer such as, "This testimonial or endorsement does not constitute a guarantee, warranty or prediction regarding the outcome of your legal matter."
Terms such as "expert," "specialist" or "certified" must be used with caution. Under California rules, only attorneys who have been accredited by the Board of Legal Specialization or other State Bar-accredited entities may use such distinctions. Moreover, not all practice areas have specialization accreditations. It is best to refer to an attorney's credentials rather than risk assigning terms that can get them into trouble.
III. SPECIFIC RULES TO KEEP IN MIND:
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1. Law firms must keep a copy of all written and electronic communications for 2 years, with a record of to whom it was sent.
2. Law firms must carefully distinguish between their law practice and any ancillary businesses they own or operate. Marketing materials should clearly distinguish between these entities, and all involved lawyers and staff should be properly trained in what can and cannot be said to clients.
3. As mentioned earlier, California requires all direct mail communications and electronic delivery methods (such as email and Web sites) to contain "Advertising," "Newsletter" or words of similar import on the first page and on any accompanying envelope (in 12-point font on the letter).
4. Include the name of at least one attorney who is responsible for its content.
5. Include "LLP" or other appropriate designation at least once in each piece, so long as the designation is accurate and truthful.
6. Multi-jurisdictional and global law practices must be especially careful about marketing their practices. First, they must comply with the rules of their home state. If their California law firm is marketing its services in Tennessee, that campaign must be conducted by California's rules. Second, if the geographic location they are marketing to has stricter rules than their own state, they should follow those higher standards.
As a general rule, always start with the broadest rule and move to the more specific. In California, the broadest rule is 1-400 of the Rules of Professional Conduct. It is promulgated by the Supreme Court of California. From there, you can move to the more specific State Bar Act.
As we said at the beginning of this article, you should see an experienced ethics attorney before launching your next marketing or advertising campaign. This article is an incomplete overview of the rules that govern attorney advertising, communication and marketing, and is not intended as legal advice. John Cosmides is not an attorney.
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| Bay Area legal marketing consultant, John Cosmides, is principal of The Cosmides Group and director of Barustors, a State Bar-certified referral service for business and corporate clients. John can be reached at john@barustors.com or at 415-957-1330. |  |