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Attorney’s Guide to Ethical Marketing: Colorado

 

This post is part of the Attorney’s Guide to Ethical Marketing, a series of posts (and eventually an eBook) that provides attorneys with a summary of key ethical rules for marketing across all fifty states, and the US territories.  If you want to be notified when your jurisdiction is covered, subscribe to The Dead Drop, my monthly newsletter covering updates from this site and beyond on marketing, law, and the psychology of persuasion.

• Relevant Citations: Colo. RPC 7.1-7.6

• Limitations on Direct Contact with Prospective Clients (Y/N): Yes. Direct contact permitted only via regular mail and only for other lawyers and for the soliciting lawyer’s family. See Colo. RPC 7.1 and 7.3.

• Permitted Forms of Marketing

• Traditional Media (Y/N): Yes

• Inbound Marketing (Y/N): Yes

• Social Media Marketing (Y/N): Yes

• Email Marketing (Y/N): Yes

• PPC Advertising (Y/N): Yes

• Mandatory Language (Y/N): Yes. See Colo. RPC 7.2(c), which states that attorney advertisements must include the name and office address of at least one responsible lawyer or law firm.

• Opt-Out Requirement (Y/N): Yes. See Colo. RPC 7.3(b)(1).

• Retention and Record-Keeping Requirement (Y/N): No

• Non-Surname Branding (Y/N): Yes, in part. Colorado prohibits the use of the names of public office holders in law firm names unless the holders of public office are practicing with the firm. See Colo. RPC 7.5(c).

• Date of Last Revision: April 12, 2018. See Colo. RPC 9.

Comments:

Other than noting a provision prohibiting law practices from obtaining public appointments via officials to whom they made campaign contributions, there is little to say about the Colorado Rules of Professional Conduct. See Colo. RPC 7.6. The Colo. RPCs are short and sweet, fairly closely following the Model Rules of Professional Conduct. Perhaps that’s a bit of burnout after the morass that was California, or perhaps it indicates areas of concern.

One area of concern may be in how the rules are written broadly, allowing for potential disputes concerning the intent behind the rules. For example, Colo. RPC 7.2 provides that attorneys may use all forms of “written, recorded, and electronic communication, including public media.” Colo. RPC 7.2(a) (it should be noted that this is a change from the model rules, which allow advertising across all mediums). No definition is provided in the Supreme Court Commentary to the rules as to what consititutes “public media,” nor are common questions answered about the content of the advertisement, other than the general prohibitions about false and misleading statements. While other jurisdictions address questions regarding the use of client testimonials, celebrity spokespersons and endorsements, mandatory use of language in the content of advertising, and the like (for example, see how detailed California and Arizona go in treating the content of advertisements, going so far as to regulate the style of text used in print advertisements). This may mean that Colorado is more flexible in how the courts can regulate attorney conduct, using broader rules open to more interpretation to handle attorney behavior, but it also means that attorneys have less specific guidance for knowing how to comply with the rules.

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Attorney’s Guide to Ethical Marketing: California

 

This post is part of the Attorney’s Guide to Ethical Marketing, a series of posts (and eventually an eBook) that provides attorneys with a summary of key ethical rules for marketing across all fifty states, and the US territories.  If you want to be notified when your jurisdiction is covered, subscribe to The Dead Drop, my monthly newsletter covering updates from this site and beyond on marketing, law, and the psychology of persuasion.

• Relevant Citations: Cal. RPC §§ 7.1-7.5; Cal. Bus. & Prof. Code, §§ 6150–6159.2; Cal. Bus. & Prof. Code §§ 17000 et seq

BPC §§ 6150-6156 (solicitation);

BPC §§ 6157-6159.2 (advertising).

BPC, §§ 17000 et seq. While the RPC specifically reference BPC §§ 17000 et seq. (Unfair Trade Practices) there are no specific provisions in that law applicable to attorneys as to advertising for their legal practices.

• Limitations on Direct Contact with Prospective Clients (Y/N): Yes

• Permitted Forms of Marketing

• Traditional Media (Y/N): Yes

• Inbound Marketing (Y/N): Yes

• Social Media Marketing (Y/N): Yes

• Email Marketing (Y/N): Yes, in part. Direct solicitation of clients (except those not fitting within the limited familial exception) is prohibited, but the RPC does not prohibit general emails providing information to a subscribing audience. See RPC 7.3(b) and (e).

• PPC Advertising (Y/N): Yes

• Mandatory Language (Y/N): Yes. Unless a communication is apparent by its nature to be an advertisement, it must be marked as such on the outside of the writing or at the beginning and end of the electronic communication. See RPC 7.3(c). Additionally, all advertising must include the name and address of one lawyer or the law firm responsible for the advertisement. See RPC 7.2(c).

• Opt-Out Requirement (Y/N): Yes See RPC 7.3(b)(1).

• Retention and Record Keeping Requirement (Y/N): Yes (1 Year). See BPC § 6159.1

• Non-Surname Branding (Y/N): Yes

• Date of Last Revision: 2018 (RPC); 2006 (BPC §§ 6150-6156); 1994 (BPC §§ 6157-6159.2) 1941 (BPC §§ 17000-17101).

Comments:

Perhaps unsurprisingly, California is uniquely intensive in its regulation of the practice of law in general and advertising related to the practice of law, specifically. However, it is not well organized in its regulation, with some parts of the regulation occurring in the Rules of Professional Conduct, others in attorney-focused regulations within the California Business and Professional Code (“BPC”), and lastly others in the unfair competition portion of the BPC. See Cal. RPC §§ 7.1 et al.; BPC §§ 6157-6159.2.; and, BPC §§ 17000-17101.

California criminalizes direct solicitation at hospitals, jails, and other specified facilities. See BPC § 6152. It also provides for specific rules concerning the use of dramatization in attorney advertising, prohibiting the use of actors portraying an attorney, a client (without disclosure that the client is being portrayed by an actor), or the use of a celebrity spokesperson without disclosure of that celebrity’s title. See BPC § 6157.2 (truly, this is a missed opportunity for the Kardashians). Additionally, not only does California have a rather common prohibition against false and misleading advertising, it flips the burden of proof with respect to advertising, creating a rebuttable presumption that all advertising is false or misleading, with certain exceptions as to content. See BPC §§ 6157.1 and 6158 (with respect to advertising on the internet) and BPC § 6158.1 (with respect to the evidentiary presumption at trial).

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Attorney’s Guide to Ethical Marketing: Arkansas

 

This post is part of the Attorney’s Guide to Ethical Marketing, a series of posts (and eventually an eBook) that provides attorneys with a summary of key ethical rules for marketing across all fifty states, and the US territories.  If you want to be notified when your jurisdiction is covered, subscribe to The Dead Drop, my monthly newsletter covering updates from this site and beyond on marketing, law, and the psychology of persuasion.

• Relevant Citations: AR. Rules 7.1-7.5

• Limitations on Direct Contact with Prospective Clients (Y/N): No, in part.

• Permitted Forms of Marketing

• Traditional Media (Y/N): Yes

• Inbound Marketing (Y/N): Yes

• Social Media Marketing (Y/N): Yes

• Email Marketing (Y/N): Yes, in part.

• PPC Advertising (Y/N): Yes

• Mandatory Language (Y/N): Yes

• Opt-Out Requirement (Y/N): Yes

• Retention and Record Keeping Requirement (Y/N): Yes

• Non-Surname Branding (Y/N): Yes

• Date of Last Revision: 2005

Comments:

Arkansas is liberal in what it allows with respect to direct communication with potential clients. Written communications with “anyone known to be in need of legal services in a particular matter by written communication” are permitted provided that the writing be sent by regular US Mail, marked as “ADVERTISEMENT” on the envelope and all pages within, provide an opportunity for the recipient to send complaints regarding the advertisement, and sent no sooner than 30 days after the death of a relevant party in death cases. See Ar. Rules 7.3(b). However, the Arkansas Supreme Court prohibits direct real time electronic solicitation. Based on this prohibition, Arkansas permits generic email marketing, but not individualized email marketing.

Arkansas requires a record of all advertisements used kept on file for five years, along with a listing of all platforms in which the advertisement was published. All advertisements must include a name of one of the responsible attorneys, the geographic location of the law firm promulgating the advertisement, and cannot include clients. Arkansas prohibits the use of dramatizations, and requires disclosures if actors are used in advertisements. (I question how productive it would be to use actors if dramatizations are prohibited.)

If you are interested in developing a coherent, strategic approach to marketing your business, or if you just have a few questions you need answered about digital marketing, I’m happy to help.  We can set up a time at your convenience to go over your questions and concerns.  I promise it won’t feel like a pitch for a used car or a time share, and, no matter what, you will walk away with marketing intelligence you can use.  Here’s a link to my schedule if you want to set something up.

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Attorney’s Guide to Ethical Marketing: Arizona

 

This post is part of the Attorney’s Guide to Ethical Marketing, a series of posts (and eventually an eBook) that provides attorneys with a summary of key ethical rules for marketing across all fifty states, and the US territories.  If you want to be notified when your jurisdiction is covered, subscribe to The Dead Drop, my monthly newsletter covering updates from this site and beyond on marketing, law, and the psychology of persuasion.

• Relevant Citations: A.R.S. Sup. Ct. Rules, Rule 42, Rules of Prof. Conduct, Rule 42, ER 7.1-7.5. The official version of these rules are available at Thompson-Reuters and the State Bar of Arizona (both last visited December 3, 2018).

• Limitations on Direct Contact with Prospective Clients (Y/N): Yes

• Permitted Forms of Marketing

• Traditional Media (Y/N): Yes

• Inbound Marketing (Y/N): Yes

• Social Media Marketing (Y/N): Yes

• Email Marketing (Y/N): Yes

• PPC Advertising (Y/N): Yes

• Mandatory Language (Y/N): Yes

• Opt-Out Requirement (Y/N): Yes

• Retention and Record-Keeping Requirement (Y/N): Yes

• Non-Surname Branding: Yes (with exceptions detailed below)

• Date of Last Revision: 2018

Comments:

All advertising must have the name and contact information for at least one attorney responsible for the advertisement. All advertising should be marked as “Advertising Material” in a font twice the size of the body text of the advertisement and at the beginning and end of electronic advertisements. If a contract is included with the advertising, it must be watermarked as a sample contract. A copy of all print advertisements must be mailed to the State Bar of Arizona. Print advertisements and permitted solicitations can only be mailed using “regular” US mail, not registered mail, to avoid the appearance of being related to litigation.

Arizona has a unique rule regarding the use of names for law firms. When an attorney who works for or otherwise has an interest in a law firm also holds public office, that attorney’s name cannot be used in the name of the law firm or in communications on behalf of that law firm. See ER 7.5(c) (in many states, this prohibition exists only where the attorney does not practice with the firm).

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Attorney’s Guide to Ethical Marketing: Alaska

 

This post is part of the Attorney’s Guide to Ethical Marketing, a series of posts (and eventually an eBook) that provides attorneys with a summary of key ethical rules for marketing across all fifty states, and the US territories.  If you want to be notified when your jurisdiction is covered, subscribe to The Dead Drop, my monthly newsletter covering updates from this site and beyond on marketing, law, and the psychology of persuasion.

• Relevant Citations: Alaska Rules of Court, Rules of Professional Conduct, RPC 7.1-7.5

• Limitations on Direct Contact with Prospective Clients (Y/N): Yes

• Permitted Forms of Marketing

• Traditional Media (Y/N): Yes

• Inbound Marketing (Y/N): Yes

• Social Media Marketing (Y/N): Yes

• Email Marketing (Y/N): Yes

• PPC Advertising (Y/N): Yes

• Mandatory Language (Y/N): Yes

• Opt-Out Requirement (Y/N): Yes

• Retention and Record Keeping Requirement (Y/N): No

• Non-Surname Branding (Y/N): Yes

• Date of Last Revision: 2017

Comments:

Alaska is much more straightforward about attorney marketing than other states. This reflects, perhaps, a willingness to adopt the Model Rules of Professional Conduct more closely or perhaps a more practical approach to providing legal services to people in a vast region.

Under the Alaska RPC, all advertising material should be marked “advertising material” on the outside of the physical document and at the beginning and end of any recorded or electronic communication, with certain limited exceptions (i.e., advertising to family or to other lawyers).

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Attorney’s Guide to Ethical Marketing: Alabama

This post is part of the Attorney’s Guide to Ethical Marketing, a series of posts (and eventually an eBook) that provides attorneys with a summary of key ethical rules for marketing across all fifty states, and the US territories.  If you want to be notified when your jurisdiction is covered, subscribe to The Dead Drop, my monthly newsletter covering updates from this site and beyond on marketing, law, and the psychology of persuasion.

  • Relevant Citations: Ala. RPC §§ 7.1–7.6
  • Limitations on Direct Contact with Prospective Clients (Y/N): Yes
  • Permitted Forms of Marketing
    • Traditional Media (Y/N): Yes
    • Inbound Marketing (Y/N): Yes
    • Social Media Marketing (Y/N): Yes
    • Email Marketing (Y/N): Yes
    • PPC Advertising (Y/N): Yes
  • Mandatory Language (Y/N): Yes
  • Opt-Out Requirement (Y/N): Yes
  • Retention and Record Keeping Requirement (Y/N): Yes
  • Non-Surname Branding (Y/N): Yes
  • Date of Last Revision: 2009

Comments:

All printed communications must be marked as advertisements in red 14-point text and indicate the name of at least one attorney responsible for the content thereon. If a contract is included, it must be watermarked indicating that it is a sample contract. All advertisements must be sent to the Office of the General Counsel of the Alabama State Bar Association and retained on file by the advertising party for six years.

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My New Series: An Attorney’s Guide to Ethical Marketing Across the United States

Beginning this week, I will be publishing a series of posts that summarize the legal rules that govern attorney marketing. This series came out of working with a client that wanted to market his law firm aggressively but was afraid the Washington Rules of Professional Conduct tied his hands. In June 2018, I prepared a guide for Washington lawyers on how they could engage in effective marketing yet still comply with the Rules of Professional Conduct. My guide was part of helping him understand that he had a lot of leeway in how he approached marketing and branding his business.

After writing the guide, I became intrigued by the question of how legislatures and courts regulated attorney marketing in the US, where there were critical differences in marketing rules across the states, and whether there were trends in attorney marketing regulations. (As you may expect, finding that sort of thing intriguing doesn’t exactly make me exciting company at a cocktail party.)  This project came out of those questions, and I hope it will help law firms asking the same questions as my client was back in the summer of 2018.

What to Expect

Each post provides a “baseball card” of sorts to lawyers looking for a quick reference on the rules governing how they can market their legal practice. It provides an easy-to-reference link to the governing law (well, laws, in the case of California), and quickly answers the following questions:

  • Can I directly reach out to potential clients in my jurisdiction?
  • Can I use traditional print, radio, and television marketing in my jurisdiction?
  • Can I use inbound marketing in my jurisdiction?
  • Can I use social media marketing in my jurisdiction?
  • Can I use pay-per-click advertising on either search engines or social media sites in my jurisdiction?
  • Do I need to include special language in attorney advertising?
  • Do I need to have an “opt-out” provision for people that don’t want to see my law firm’s ads?
  • Do I need to keep a copy of my ads for a particular length of time?
  • Do I need to use my last name as the name of my law firm, or can I make it something more memorable and appealing to clients? (As someone who grew up with a Polish surname that people found difficult to pronounce, let alone spell, I can understand this desire.)

When appropriate, each post will also provide a short commentary addressing common pitfalls and concerns related to attorney advertising.

Why Publish This Guide

As a former litigator, I understand that while any attorney worth their license could do this research themselves, they find themselves swamped with a million different responsibilities for clients to occupy their billable hours. As a result, a lot of attorneys neglect the marketing of their legal practice because it is just one more thing to do; worse, it is one more thing that happens to be rife with ethical pitfalls and compliance issues.

Marketing in highly regulated professions is a niche in which I specialize. I enjoy the challenge of combining my legal knowledge with my experience in creating psychologically compelling content that persuades people to take action. If you are interested in developing a coherent, strategic approach to marketing your business, or if you have a few questions you need answered about digital marketing, I’m happy to help. We can set up a time at your convenience to go over your questions and concerns. I promise it won’t feel like a pitch for a used car or a timeshare, and, no matter what, you will walk away with marketing intelligence you can use. Here’s a link to my schedule if you want to set something up.

Where to Find Other Posts in this Series

I plan on covering all fifty states and will include analysis and commentary as well. I will collect these posts in the Attorney’s Guide to Ethical Marketing during the process of creating this series, and then release them as a standalone eBook at its conclusion. If you want to be notified when I cover your jurisdiction, subscribe to The Dead Drop, my monthly newsletter has updates from this site and beyond on marketing, law, and the psychology of persuasion.

Jurisdictions Covered

  • Alabama
  • Alaska
  • Arizona
  • Arkansas
  • California
  • Colorado
  • Connecticut
  • Delaware
  • Florida
  • Georgia
  • Hawaii
  • Idaho
  • Illinois
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Louisiana
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Mississippi
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • North Carolina
  • North Dakota
  • Ohio
  • Oklahoma
  • Oregon
  • Pennsylvania
  • Rhode Island
  • South Carolina
  • South Dakota
  • Tennessee
  • Texas
  • Utah
  • Vermont
  • Virginia
  • Washington
  • West Virginia
  • Wisconsin
  • Wyoming
  • Territories
    • American Samoa
    • District of Columbia
    • Guam
    • Northern Mariana Island
    • Puerto Rico
    • United States Virgin Islands
  • Relevant Federal Regulations
  • Comparison with the Model Rules of Professional Conduct and ABA Guidance
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Presentation for Northwest University

This is a copy of a presentation I am giving for marketing students at Northwest University in Kirkland, WA, on October 23, 2018.  Thanks go to  Professor Sarah Nelson, and to the students for their time.


Anything you say can be used against you – Created with Haiku Deck, presentation software that inspires

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Digital Marketing for Washington Attorneys

Television, the Internet, and other forms of electronic communication are now among the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public.

RPC 7.2 (Comment 3) (2016).

Few professions are as heavily regulated as law when it comes to advertising in the United States. However, attorneys in Washington State have a great deal of flexibility when it comes to advertising in accordance with the applicable ethics rules. See RPC 7.1–7.5. This piece addresses the Rules of Professional Conduct (RPC) applicable to digital marketing of legal services.

Under the RPC, Washington attorneys are prohibited from the following sorts of advertising:

  • advertising that misrepresents either facts or the law (RPC 7.1);
  • advertising that makes a true statement that is still misleading (RPC 7.1(2));
  • advertising that states a lawyer can reproduce past outcomes in future cases (RPC 7.1(3));
  • advertising that compares a lawyer favorably to other lawyers without justification (RPC 7.1(3));
  • advertising stating a lawyer can inappropriately influence a government official (RPC 7.1(4) and RPC 8.4(e));
  • claims of special certifications without basis and attribution (RPC 7.4); and,
  • generally, direct contact with most potential clients to seek employment (RPC 7.3).

Thus, many attorneys feel that they can engage in general television and radio advertisements, a basic website, and little else. When considering the high costs of print, radio, and television advertising, many attorneys forego it all together. Similarly, many avoid it because it appears cheap and schlocky.

However expensive traditional media may be for advertising, there are cost-effective options available to attorneys wishing to seek new ways to bring in potential clients.  Inbound content marketing, focusing on informative content that attracts potential litigants or other potential clients, works hand-in-hand with the algorithms that guide Google’s search engine results.  As attorneys publish more information on their practice areas, they become more likely to be found via a Google search, now the primary means that consumers search for professionals.

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If you haven’t acted yet, you’re late.

Recently, I’ve been writing about the changes in privacy laws that affect businesses as a result of the European Union enacting the GDPR.  The date the law came into force was May 25, 2018, so businesses that haven’t updated their privacy policies are late.  I’ve updated my privacy and content policies.  You should too.