June 2018

A Quick Look at Attorney Advertising

By Patrick Kearns

Wilson Elser Moskowitz Edelman & Dicker LLP

A friend of mine, a California attorney, recently reached out to me regarding a newspaper advertisement he saw in a Southern California newspaper. My friend practices insurance defense and professional liability, primarily for medical providers and facilities. He was astounded by the advertisement which was a full, two-page fold-out identifying at the top, in large letters, the name of a particular hospital and asking whether “you or someone you love” had been a patient at the facility. The advertisement then proceeded to identify a list of approximately 15-20 boxes for the reader to “check” if applicable and next to each box, was a fairly detailed recital of a regulatory violation, deficiency, or citation the facility had purportedly received. At the end, the advertisement invited readers, presumably those who had been a patient or knew someone that was, to call the law firm identified. “Isn’t this a violation of the Rules of Professional Conduct?” my friend asked. He then stated: “It feels like one.” The answer is in the details.

For the moment, attorney advertising is governed primarily by California Rule of Professional Conduct 1-400. This will change however, on November 1, 2018, when the new Rules of Professional Conduct — recently approved by the California Supreme Court — go into effect and, as they are set forth in more detail, will become Rules 7.1, 7.2, 7.3, 7.4 and 7.5. Here is a brief review of the key issues in both rules.

Both Rule 1-400 and New Rule 7 have a consistent, underlying theme: honesty and transparency. Both rules focus on ensuring that any attorney advertisements or solicitations are truthful, not misleading, clearly identifiable as advertisements, and ensure the advertiser’s accountability. They also mitigate the use of any undue duress or pressure by prohibiting, for example, solicitation of a potential client through in-person, telephone, or real-time electronic communications. (1-400(B)(2) and 7.3(a).)

When advertising in writing — for example, a print advertisement in a newspaper — there are several requirements which must be met at the outset to ensure compliance with the Rules of Professional Conduct. The advertisement must actually say that it is an “advertisement,” “solicitation,” or words of similar import which are readily identifiable. (1-400(D)(4); 7.3(c)). The advertisement must identify at least one attorney’s name responsible for the advertisement (even if a firm is identified). (1-400, standard 12; 7.2(c); Note that under the new Rule 7.2(c) both the name and address of at least one responsible attorney must be identified.) Any advertisement or solicitation which guarantees or warrants a result is a presumptive violation under 1-400 and deemed a “false or misleading communication” under the new 7.1. (1.400, standard 1; 7.1 comment 2.) This is not an exhaustive list.

As noted above however, the focus of both the current and new rules regarding advertising and solicitation is ensuring the communications are truthful and not misleading. Both Rule 1-400 and Rule 7 prohibit lawyers from making any false or misleading communications, regardless of the medium. This of course prohibits statements which are simply untrue, but also statements which may be deceptive, or misleading due to omitted facts. To illustrate, the new Rule 7.1 explains in greater detail that even statements which are true, but misleading, may violate an attorney’s ethical obligations. Comment [3] to Rule 7.1 notes that a truthful statement may be misleading if it “omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading,” or if it creates a “substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.” (new Rule 7.1, comment [3].) 

Both the current and the new rules also touch on “testimonials” and attorney “achievements” as a potential source for violations of the rule. Standard (2) in Rule 1-400 notes that a communication which contains a testimonial or endorsement of the lawyer must contain an express disclaimer that such communication does not constitute a guarantee or prediction of results, otherwise it is a presumed violation. Similarly, Comment [4] to the new Rule 7.1 explains that even a truthful statement regarding the lawyer’s achievements on behalf of clients or former clients, or a testimonial or endorsement, may be misleading and thus a violation, if “presented so as to lead a reasonable person to form an unjustified expectation” that they could obtain the same results. (New Rule 7.1, comment [4].) Although the comments to the new 7.2 do not require a disclaimer be included, it does note that such a disclaimer “often avoids creating unjustified expectations.”

The Rules of Professional Conduct are changing in November and if you maintain a professional website; a firm Facebook page, or plan on doing any type of advertising, you’ll want to spend a few minutes reviewing the rules. Despite the upcoming changes, however, the “core”  substance of the rules regarding attorney advertising remain the same; advertising and solicitation must be done truthfully, with clarity, transparency, and must not mislead or deceive the public.

**No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**