Even with the relaxed standards covering law firm advertising, every state has ethical rules about what is allowed and what isn’t.
In Colorado, the rules say the ads can’t have misleading content and that lawyers can’t misrepresent themselves or their firms’ successes.
“In January, we have some new rules of professional conduct,” said Nancy Cohen, chief deputy regulation counsel with the Colorado Supreme Court Office of Attorney Regulation. “The biggest rule is that lawyers will be allowed to practice under a trade name, as long as it doesn’t misrepresent the fact they are a private law firm.”
Currently, law firms must practice under the senior partners’ names — leading to long, confusing firm names. In 2008, they will be able to practice under names like “Water Law of Colorado” or “Immigration Law Firm.”
When the U.S. Supreme Court approved allowing attorneys to advertise (Bates v. Arizona, 1977), the justices left the ethics up to the state, said Will Hornsby, general counsel for the American Bar Association.
Today, marketing professionals operate divisions within law firms, with six-figure budgets. But they are still governed by strict guidelines, many of which vary from state to state.
Attorney advertising has to be labeled as advertising if it could be construed as some other means of communication, Hornsby said. On television, lawyers shown in ads must be members of the firm and actual clients must be used in states where testimonials are allowed.
Colorado allows testimonials, as long as they don’t promise results, Cohen said.
“You can’t have a client say, ‘he got me a million dollars and he’ll get you that too,’” she said. “But you can say that he was great to work with, was on time and returned phone calls.”
Following its original decision, the court also said that states could ban client solicitation if it was made for “pecuniary gain as opposed to public gain.”
“The ban does allow states to create exceptions: family members, other lawyers, current or prior clients,” Hornsby said. “The justification is that lawyers have the ability to be over-reaching in their solicitations and are ‘trained in the art of persuasion.’ The combination justifies the ban of solicitations in person, on the phone or in real-time electronic communications.”
But too many rules only hamper the profession and the consumer, said Bruce Marcus, a marketing consultant for law firms and accountants. The ethics of good lawyers are above reproach, he said.
“In case nobody’s noticed, Bates gave us competition,” he said. “It’s now ubiquitous. What’s needed now is not arbitrary and rigid restrictions on competition — that helps no one. Competition helps the consumer of legal services, and helps — not hurts — the profession.