The modern era of lawyer advertising dawned on June 27, 1977, when the U.S. Supreme Court decided Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Most legal ethics codes in effect at the time, including Indiana’s, prohibited lawyers from advertising their services to the public. The U.S. Supreme Court held that publicity about legal services was commercial speech protected by the First Amendment, just not to the full extent as political speech.
In the years following Bates, the U.S. Supreme Court expanded the umbrella of constitutional protection to publicity about legal services for specific cases (e.g., products liability claims involving the Dalkon Shield contraceptive device) and direct correspondence to individuals promoting legal representation upon the occurrence of a specific event, known as “targeted solicitation letters.” However, the Court’s protection of lawyer advertising has not been limitless. States may still constitutionally prohibit in-person solicitation of clients—Indiana does. And they may impose a cooling off period before lawyers are permitted to send targeted solicitations to injured accident victims—Indiana doesn’t. False, misleading or deceptive statements are the triggers for constitutionally permissible regulation of lawyer advertising.
Indiana has been more active than most jurisdictions in regulating lawyer advertising. Moreover, Indiana’s rules on lawyer advertising give considerably greater guidance than the ABA Model Rules of Professional Conduct. It seems as though the ABA, perhaps in an effort to preempt additional constitutional challenges, opted to be as general (and, in my view, unhelpful) as possible. For example, the key rule governing lawyer advertising, ABA Model Rule 7.1, states: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of act or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” By contrast, Indiana’s corresponding primary advertising and publicity rule, Indiana Rule of Professional Conduct 7.2, includes many specific examples of acceptable and unacceptable types of advertising statements. You may agree or disagree with the examples, but at least Indiana lawyers have the benefit of more guidance than the ABA offers.
Because lawyer advertising is a subject of regular lawyer discipline, lawyers who choose to engage in advertising should be intimately familiar with the applicable rules, especially Indiana Rules of Professional Conduct 7.2 through 7.5, and the cases construing them.
Frequently, lawyers work with advertising professionals to design and build the content of their ads, including Internet websites. There’s nothing wrong with that, but lawyers should understand that the duty to comply with the advertising rules cannot be delegated. In fact, Rule of Professional Conduct 7.2(e) states clearly: “A copy or recording of an advertisement shall be approved by the lawyer and shall be kept for six years after its dissemination along with a record of when and where it was used.” If you’re not familiar with the law in this area, get advice from another lawyer who is. Never trust your law license to an advertising account representative.
Another form of lawyer advertising, mentioned earlier, is the targeted solicitation letter. In Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Supreme Court held that mail solicitation of legal business upon the occurrence of a specific event was constitutionally protected speech so long as it was not misleading. However, the Court also said the states could require the materials to be identified as advertising material and filed with the lawyer regulatory agency. The Indiana Supreme Court opted for both. Under Rule of Professional Conduct 7.3(c):
All written, recorded, or electronic communications from a lawyer soliciting professional employment from a prospective client potentially in need of legal services in a particular matter, and with whom the lawyer has no family or prior professional relationship, shall include the words “Advertising Material” conspicuously placed both on the face of any outside envelope and at the beginning of any written communication, and both at the beginning and ending of any recorded communication.
The rule specifies that each individual letter does not have to be filed with the Disciplinary Commission—only the letter template into which variables, such as the names and addresses of recipients, will be inserted.
The “Advertising Material” disclaimer must appear conspicuously on any envelope and at the beginning of any written communication. These are words of art and the disclaimer must be in precisely that form. Variations do not comply with the rule. In the case of letters in Spanish or other non-English languages, the disclaimer should appear in both English and in accurate translation into the applicable language.
Although conspicuousness is not defined in the rule, the disclaimer must be made prominent by a clear contrast between the disclaimer language and the balance of the communication in enough of the following ways to make it stand out to the reasonable reader: larger size, different font, contrasting color or boldness, and placement apart from other text. Oftentimes, failure to take these points into consideration will cause the disclaimer to blend into, rather than stand out from, other letterhead text.
A filing fee of $50.00 is now required for each targeted solicitation filing. The Disciplinary Commission promoted this amendment on the theory that use of targeted solicitations is pure economic activity. Thus, the Commission’s administrative costs should be borne by lawyers who choose to engage in that activity, not subsidized by non-users through their mandatory annual registration fees. Note that a separate filing fee is not required in the case of non-English versions of targeted solicitation letters, so long as they are materially identical to their English counterparts.
Because targeted solicitations now carry a cost not previously associated with them, lawyers should understand what types of communications do not come within the scope of Rule 7.3(c) and, therefore, do not have to be filed with the Commission. The rule applies only to communications to prospective clients “potentially in need of legal services in a particular matter” (my emphasis). Written, recorded or electronic communications, even by personally addressed letter, that generally promote the legal services offered by a lawyer or law firm to the public-at-large or to a sub-group of the public-at-large do not come within the scope of the rule. However, if a specific event occurs (such as an accident or a home foreclosure) that triggers a perception that the affected individual or organization might benefit from legal services in connection with the matter, the requirements of Rule 7.3(c) must be satisfied.
Also, general media advertising, as opposed to direct communications to individuals, even if targeted at a narrow subset of the general public (e.g., homeowners facing foreclosure), does not need to be filed with the Disciplinary Commission.
As consumers, we have become accustomed to advertising that plays fast and loose with the truth—or, at least, with accuracy. The U.S. Supreme Court has permitted regulation of lawyer advertising that holds lawyers accountable for the accuracy of the representations in their ads. The promotion of legal services, especially to unsophisticated consumers, is not like selling health club memberships. Rigorous accountability to the truth is expected. Next month: I’ll say more about the content of lawyer advertising.