Attorney’s Guide to Ethical Marketing: Delaware
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: Del. RPC 7.1–7.6; 8.4(e)
- 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, with caution
- 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: 2013
Delaware follows the Model Rules relatively closely and has minimal restrictions on attorney advertising. Direct contact with prospective clients is prohibited other than with lawyers, past clients, family (sorry, relatives of Delaware attorneys), past clients, and those with personal relationships with the attorney. See Del. RPC 7.3.
Delaware attorneys are allowed to use all forms of traditional and digital marketing, from direct mailers to PPC advertisements on Google. However, attorneys must include an opt-out provision for their advertisements. See Del. RPC 7.3(b)(1). The commentary to Del. RPC 7.3 cautions that, even without a formal opting out, sending multiple communications to a party without a response from that party may violate Del. RPC 7.3(b)(1). For this reason, Delaware attorneys need to make sure that the email marketing system they are using, if any, is taking recipients off their mailing list when they are not interacting with their emails (this is a good practice, in general, as it avoids the potential of an email address being listed as a spam address). All advertisements – unless follow-up communications with potential clients – should be marked as “advertising material” in accordance with Del. RPC 7.3(c), whether on the outside of a mailer or at the beginning and end of an email marketing newsletter. Unsurprisingly, no advertisement should include claims of an ability to improperly influence the outcome of a government decision. See Del. RPC 7.4(e).
Delaware allows attorneys to use non-surname branding, provided, of course, it does not imply a connection with a government or non-profit organization. See Del. RPC 7.5. As with other states, Delaware prohibits the use of the surname of an individual holding public office in a law firm name unless that individual is actively practicing with the firm. See Del. RPC 7.5(c).