For those of you, like me, who were at one time fascinated with –and maybe addicted to–the TV show The Practice, you may remember Jimmy, who practiced under the shadow of his one-time ethical blunder viz his “The Bulldog Lawyer” TV advertisement. Of course, there was no official admonishment from the Bar. Rather, it was brought up in numeous episodes as evidence of bad judgment and an unabashedly extreme example of advertising which reflects poorly on the legal profession.
Now, in a life imitates art event, the Florida Supreme Court has disciplined lawyers who used a pit bull logo and a 1-800-pit-bull phone number in their advertising. The court overturned a referee’s finding that the ethics rules were unconstitutional as applied to this matter. You can read a comprehensive detail of the case here. In a post on his blawg The Boundaries of Legal Marketing, Will Hornsby observes that the 2002 changes to the ABA Model Rules included provisions that govern client development. Among these is included a revision of the standard defining “false and misleading” communications. As Hornsby mentions in his post, at the time of the referee’s decision, it was reported that the only non-lawyer who complained was a Pit Bull breeder who claimed that the association with lawyers was pulling down the image of the breed!
Nothing that a firm says to get business can be false or misleading. That sounds easy enough, but the pre-Ethics 2000 version of Rule 7.1 not only prohibited communications that were materially misleading, but also those that create an “unjustified expectation about the results” and those that include an “unsubstantiated comparison.”
State interpretations of limitations have sometimes been very restrictive, disallowing testimonials and the use of superlatives such as “honest,” “caring” and “trustworthy.” The assumption was that if a lawyer stated he or she was “caring” it meant that other lawyers were not and therefore was an unsubstantiated comparison.
The new ABA Rule now fundamentally prohibits material misrepresentations. Yet few states have adopted this change, including those that have undergone an Ethics 2000 review. And some states continue to define “false and misleading” even broader than that done in the pre-Ethics ABA version.
A few states have adopted the ABA Rules changes. Utah, for example. But most states persist in being more restrictive than the ABA Model Rules. And this is what leads many lawyers to resent what they believe is over-cautionary action and knee-jerk protectionism on the part of their own state courts.
The Florida Court’s sanctioning has prompted a lot of commenting from lawyers in the blogosphere. Most are highly critical of the actions of the Florida Court, either on first amendment grounds, or because they don’t believe the public must be “protected” to the degree the courts insist, and because, frankly, lawyers have been marketing to one degree or another for quite some time. Take a look at Carol Elefant’s blog, My Shingle, for an example of the dialogue between lawyers on the court’s obligation to protect the public. All but one of those posting comments is critical of the decision.
Pennsylvania has not adopted the wider provisions of the American Bar Model Rules, but did enact some changes in January, 2005, and subsequently. You can get the entire Rules online as of 4/23/05 here. I usually recommend that lawyers re-read the Rules every year to refresh themselves. It’s amazing, but one always seems to find something not previously seen upon a re-reading.
Of course, in Pennsylvania the Rules are interpreted and made applicable through the formal and informal opinions of the Legal Ethics and Professional Responsibility Committee, which although not binding on the Court, give lawyers protection from sanctions if they follow the recommendations and restrictions in the opinions. Carol Elefant published a listing of resources available on-line for solo and small firm practitioners, state by state, some time ago. It shows which states provide their ethics opinions on-line. Although the Pennsylvania Bar Association web site doesn’t provide public access to PA Opinions, the Philadelphia Bar Association’s web site does provide them here.
Both the Philadelphia and Pennsylvania Bar Associations offer a legal ethics hot line. The Pennsylvania Bar Association also publishes Pennsylvania Ethics Handbook, a comprehensive guide of more than 300 pages on the issues that lawyers face every day.
There are some excellent marketing publications available from the Law Practice Management section of the American Bar Association. Many of them may be ordered by PBA members at the ABA section discount rate through the Pennsylvania Bar Association. I recommend you start with
Marketing and Legal Ethics, Third Edition: The Boundaries of Promoting Legal Services by William E. Hornsby, Jr.
To order the Pennsylvania Ethics Handbook or any other available ABA publication offered through PBA, PBA members can call member services at 1-800-932-0311. To order directly from ABA at full price, you can call 1-800-285-2221 or go online to their store at www.lawpractice.org/catalog.
Let me sum up by saying that I have an insatiable appetite for any information on building or marketing a law practice. I read incessantly, and attend seminars at every opportunity, on this topic. I am frequently shocked when so-called marketing “experts” give advice on strategies which are clearly in violation of Pennsylvania’s ethical restrictions. Don’t take anyone’s word for a strategy you are unsure of. If you don’t want to look it up yourself, ask the “expert” for the Opinion allowing whatever strategy they recommend. Or better yet, submit the proposed strategy for a review, free of charge, from the ethics hotline.
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