When it comes to state bar rules, variety is the name of the game. Virtually all states require attorney advertising to comply with their state bar ethics and advertising rules. However, pre-approval is not always mandatory.
Some states require submission of attorney advertising to the state bar ethics commission for review and approval before publication or release. Others allow publication without prior approval, but have stricter complaint-based review policies that may have harsher consequences in the case of non-compliance.
In these states, it is voluntary for attorneys to submit their ads for an advisory opinion. Your competition may be taking advantage of these facts if you are opting out of voluntarily submitting your advertising, including websites, for approval.
In recent years, some states have moved from strict submission rules to complaint-based advertising rules. Kentucky is one of them (For more in depth study of the rules, please see KY Supreme Court Rules 3.130(4.5)-(4.6) and (7.01)-(7.60).) and most states have similar complaint-based advertising rules.
One of the ethical rules typically involves direct solicitation of business from prospective clients. Direct solicitation of business from prospective clients is strictly prohibited, e.g., for Kentucky: SCR 3.130(4.5)(1).
Sounds easy enough, just do not try to solicit cases from prospective clients in person.
A quick study of the interpretation of this rule, however, shows that we must be careful even with our social media communications. A direct Facebook or Twitter message, a text, a live phone conversation, or a FaceTime exchange, if initiated by the attorney or someone acting on his/her behalf, may violate the rule against direct solicitation.
While we can send direct mail or email to the client, bearing the required language, e.g., “Advertising Material,” on the face or subject line of the message, even such contact is prohibited if it the recipient of that message has requested not to be contacted or if the message can be perceived as coercion, duress or harassment or includes false, misleading or deceptive information.
In order for an attorney to decide whether a certain communication is considered to be advertising, based on the specific state rules, s/he must either submit the communication to the commission prior to publication or must face the consequences if such ad is found to be in violation of the rules.
These violations can be as severe as request to take down one’s website to facing disciplinary sanctions and fines.
Another aspect of the ethical compliance conversation is your competition. In most complaint-based states, there is nothing barring your competition from filing a complaint against your firm’s advertising or even submitting your advertising to the commission to get an advisory opinion on whether or not it complies with the state rules.
The good news is that these states also allow voluntary submission of ads for advisory opinions on compliance, and if found compliant, allow for this opinion to serve as a defense to discipline. (Please check your state’s rules to see if this is the case in your state.)
As attorneys, even if we hire vendors for our marketing and advertising activities, we remain the sole responsible party for any violations. Given the competitive nature of today’s market, it would be wise to submit all ads for prior approval to avoid the wrath of the competition and possible state bar sanctions.
Representing your clients takes much of your time, resources and patience. Why add another reason for trouble?