Restriction on the advertisement by law firms according to US regulations
The advertisements by lawyers play a significant role in educating the public about legal issues and assisting in the intelligent selection of counsels. This, in turn, increases the opportunity for lawyers to expand their clientele. Towards this end, the standard set by the American Bar Association under its Model Rules of Professional Conduct allows for advertisements by attorneys with very few limitations as long as such advertisement is not misleading, deceptive, or false. The State Bars, however, have their own variations of this model rule that make advertisements by lawyers a little more tricky than it may seem in the first glance.
A few years ago, advertisement by lawyers was considered against the ethics and etiquettes of the noble profession of law. Legal profession was seen as a service-oriented profession that should restrain from indulging in mundane commercial activity such as advertising.
It was not until the landmark case of Bates v. Arizona in 1977 that advertisements became commonplace for lawyers to reach out to potential clients. The court held that the prohibition on advertisement to be anachronistic and unnecessary for maintaining the integrity of the profession. In what is considered a watershed moment in the history of legal advertisement in the US, the case marked a paradigm shift on the perception towards legal advertisement among lawyers and clients alike. Advertisements from being perceived as an attack on the dignity of the profession started being received as a necessity to effectively initiate relations between lawyers and clients.
Here is the brief outline of the rules governing advertisement by lawyers in few of the major jurisdictions in the United States and how one may innovatively use artificial intelligence, machine learning, and legal documents automation, as means to engage with potential clients without violating the Rules of Professional Conduct (RPC).
New York
In New York, the rules of advertisement are progressive and provide lawyers with a considerable flexibility to market themselves. The Lawyers may use graphics, sound effects, films, to advertise themselves with the use of appropriate disclaimer so that the possibility of such representation being misleading, false, or deceptive is ruled out. The commentary on RPC published by the New York bar Association also clarifies that all the communication made by the lawyers to potential clients might not be considered as advertisements. Even the communication made to potential clientele will not be considered an advertisement if it is not for commercial purpose and is merely for a general informational purpose. This, in fact, is recognized as a duty of lawyers to make the general public aware about legal issues.
The rules on advertisement categorically bar solicitation of clients through in-person or telephone contact, or by real-time or interactive computer-accessed communication if the contactee is not an existing or former client, or a close friend or a relative. This raises the complexity of the issue when it comes to the use of Instant Messaging (IM) systems. Please see here.
Washington
In Washington DC, the laws are even more relaxed than in New York. In a welcome move, the DC Bar adopted a progressive set of rules that have minimal limitations on advertisement. The commentary on RPC states that the rules that attempts to regulate more than imposing restriction on misleading, deceiving, and false information is unnecessary. With the absence of the regulations on solicitation, there is no ambiguity involved in the legality of using IM systems providing a fertile ground for innovation in legal services online.
California
In California, the revised and updated RPC, effective from November 2018 has well-considered the development in online marketing. The advertisements have to follow the general restriction of not misleading or deceiving the recipient and disseminating false information.
The regulations on solicitation in California are similar to that of New York. Solicitation of clients through in-person or telephone contact, or by real-time or interactive computer-accessed communication if the contactee is not an existing or former client, or a close friend or a relative is prohibited. In such a scenario, the use of IM system raises complex questions.
Florida
Florida noticeably treats advertisements with more suspicion than other jurisdictions. Florida Bar has a separate Standing Committee on Advertisement that is invested in maintaining compliance with the RPC. Any kind of advertisement on TV, radio, internet, except for the website of the concerned lawyer or law firm needs to be filed for review with the respective Bar’s headquarters twenty days prior to its intended use. Interestingly, however, as per the Handbook on Lawyer Advertising and Solicitation issued by The Florida Bar, internet chatrooms and IMs are not prohibited practices. The Handbook is quite exhaustive dealing with the breadth of issues including networking sites such as Facebook, Twitter, LinkedIn. If any of the information provided on these sites are used to promote the lawyer or law firm’s practice are subject to the lawyer advertising rules.
There are grey areas in the RPC that leave the firms with considerable vagueness in the use of online marketing tools. The commentaries on both the RPCs of New York and California postulate that Instant Messaging (IM) services are not to be used.
This restriction is premised on the presumption that lawyers who are trained in the art of persuasion might pressure the client into hiring them without allowing the client adequate time and options for consideration.
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