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Attorney’s Guide to Ethical Marketing in Hawaii

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, as well as in 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: HI 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: 2014

Comments:

Hawaii follows the Model Rules of Professional Conduct (MRPC) fairly closely, and therefore its Rules of Professional Conduct (HI RPC) require little explanation (in contrast to states like Florida and Connecticut).  Hawaii prohibits direct contact with prospective clients except for close friends, family, and former clients.  See HI RPC 7.3(a).  Hawaii also permits all forms of marketing and advertising, provided – as warned in Comment 1 to HI RPC 7.3 – that the ability to directly and personally engage with potential clients via email, social media, and other platforms does not venture into “undue influence, intimidation, and over-reaching.”  (This, as might be expected, would be determined on a case-by-case basis.)

Hawaii requires that all marketing and advertising include the name of at least one lawyer responsible for the content and requires that all ads include “advertising material” at their beginning and end.  See HI RPC 7.3(c).  Additionally, attorneys using direct mail and email marketing would be wise to have clearly identified opt-out and unsubscribe options.  See HI RPC 7.3(b)(1). 

Hawaii allows law firms to be branded with trade names, including names of only deceased former partners of their law firm, provided that the name of a managing partner is kept on file with the Hawaii State Bar.  See HI RPC 7.5(b).  As with many other states, Hawaii prohibits the use of a public official’s name in a firm’s name when that public official is not actively practicing with the firm.  See HI RPC 7.5(d). 

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Attorney’s Guide to Ethical Marketing: Georgia

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: GA RPC 7.1–7.5
  • Limitations on Direct Contact with Prospective Clients (Y/N): No
  • 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): No
  • Date of Last Revision: January 1, 2001

Comments:

Generally, Georgia follows the template of the Model Rules of Professional Conduct (MRPC). Georgia does deviate, however, in some areas.

First, Georgia permits direct contact (solicitation) with prospective clients provided that the communication is marked “Advertisement” on the face of the envelope and on the top of each page of the written communication.  See GA RPC 7.3(b) (however, this is unnecessary when writing to a close friend, relative, former client, or “one whom the lawyer reasonably believes is a former client”). This is a substantial deviation from the norms set forth in the MRPC and from the ethics rules used by many other states.

Attorney advertisements must include the following:

  • the name and office location of at least one lawyer responsible for the content;
  • a disclaimer regarding contingency fees when discussing such fees in the advertisement;
  • an explanation of whether a client will pay court costs and other filing fees;
  • an identification of the advertisement as such;
  • identification of the use of a referral practice;
  • disclosure of spokespersons and portrayals (when used); and,
  • disclosures regarding the fees charged for services advertised.

See GA RPC 7.2(c)(1)-(5).

Georgia does require that attorneys include the ability to opt out of attorney communication, and imposes discipline when attorneys submit communications when they are already aware that the person does not wish to receive communication. See GA RPC 7.3. Additionally, Georgia requires attorneys to keep a copy of all of the advertisements they use for two years after the date of last use, along with a record of all of the marketing channels in which they used the advertisements (and the dates in which the advertisements were used). See GA RPC 7.2(b).

Georgia deviates from the MRPC, not only by permitting direct solicitation, but also by forbidding the use of non-surname trade names. See GA RPC 7.5(e)(1)-(2). Georgia requires attorneys to use the name of at least one of the lawyers practicing in the firm, although that can include the names of deceased or retired members of the firm.   Ibid.

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Attorney’s Guide to Ethical Marketing: Florida

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:
  • 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
    • PPC Advertising (Y/N): Yes, in part
  • 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: 2018

Comments:

Florida has effectively refused to adopt Rules of Professional Conduct that mirror the Model Rules of Professional Conduct used in many of the other jurisdictions covered by the Attorney’s Guide to Ethical Marketing. See In re Amendments to the Rules Regulating the Florida Bar – Advertising, 971 So.2d 763 (Fla. 2007) (dismissing proposed rules that mirror the direct solicitation regulations of the Model Rules). Instead, Florida utilizes a stricter approach to attorney advertising that dramatically limits content permitted therein. Florida enforces this aggressive limitation on attorney advertising by barring attorneys from collecting fees that are generated due to non-compliant advertising. See RRTFB R. 4–1.5(a) and (d).

Florida requires that all advertisements for legal services contain the name and office location of at least one firm or lawyer involved in providing services, and whether cases will be referred to other lawyers in all languages used in advertisements and in a fashion a reasonable person would consider legible, prominent, and intelligible. See RRTFB R. 4–7.12. Use of a narrator in advertisements must not give the impression that the narrator is a member of the law firm, and should include the phrase “not an employee or member of [this] law firm.” RRTFB R. 4–7.13(b)(5). With respect to the use of actors and dramatizations in advertisements, Florida requires the use of the following language: “DRAMATIZATION, NOT AN ACTUAL EVENT” and “ACTOR, NOT ACTUAL [client/attorney/etc.].” RRTFB R. 4–7.13(b)(6). Florida allows the use of client testimonials in advertisements, provided that they are made regarding matters that the client is qualified to evaluate, that the client actually experienced, that the attorney (and presumably an attorney’s representative, such as a marketing firm) did not write, that the client was not compensated for the testimonial, and that include a disclaimer that a prospective client may not obtain the same or similar results. See RRTFB R. 4–7.13(b)(8).

Florida’s Conflicting Doctrine Concerning Personal Attributes, Pit Bulls, and Advertising

Florida's limits to ethical attorney marketing

Florida’s Supreme Court ventures into the realm of of protectionist censorship.

This is going to get a bit in the weeds, but Florida has seemingly contradictory doctrine concerning … more “expressive” advertising. TLDR: Florida’s Supreme Court will pursue punishment against attorneys for emotional or expressive advertising.

Interestingly, in the comments to RRTFB R. 4–7.13, which focuses on deceptive and inherently misleading advertisements, and was last amended in 2018, the Florida Bar notes that,

The rule prohibits statements that characterize skills, experience, reputation, or record that are not objectively verifiable. Statements of a character trait or attribute are not statements that characterize skills, experience, or record. For example, a statement that a lawyer is aggressive, intelligent, creative, honest, or trustworthy is a statement of a lawyer’s personal attribute, but does not characterize the lawyer’s skills, experience, reputation, or record. These statements are permissible.

RRTFB R. 4–7.13, Comments, Characterization of Skills, Experience, Reputation, or Record.

While the Florida Supreme Court has adopted the 2018 revision to the Rules Regulating the Florida Bar, as recently as 2005, it has also taken a harsh stance against attorneys portraying themselves as aggressive. See Florida Bar, Updates to the Rules Regulating the Florida Bar. In a somewhat off the wall opinion, the Florida Supreme Court ruled that a law firm violated the RRTFB when they used an image of a pit bull in their logo and advertised themselves with the telephone number 1–800-PIT-BULL. See Fla. Bar v. Pape, SC04–40, SC04–41, 918 So.2d 240 (Fla. 2005). In Pape, the Florida Supreme Court went on a meandering trip through what it considered the scientific evidence showing the “malevolence, viciousness, and unpredictability” of pit bulls, and ruled that the comparison of the attorneys to pit bulls in the advertisements was barred by RRTFB 4–7.2 (since repealed in 2013). Id., at 8 (page numbers refer to the edition published on the Supreme Court of Florida website). The Supreme Court determined that the use of pit bull imagery was prohibited in Florida because it associated pit bulls with the “‘go for the jugular’ style of advocacy that some persons attribute to lawyers.” Id., at 12. Chief Justice Pariente went on to write that permitting the use of the pit bull image in the advertisement would make a mockery of Florida’s dedication to promoting the public trust and confidence in its system of justice. Ibid. She then mused that, were it allowed, “images of sharks, wolves, crocodiles, and piranhas could follow.” Ibid. The Florida Supreme Court then decided not only to reverse the decision of the Florida Bar permitting this advertising, but to also, sua sponte, decide the punishment for the two attorneys who used this advertising (even though the issue was not briefed by either the defendant attorneys or the State Bar).

Chief Justice Pariente is still presiding on the Supreme Court of Florida (which is proof of either the Dunning-Kruger Effect or the Peter Principle, or both), and while her 2005 decision was based on a version of the RRTFB that was repealed in part and dramatically modified in 2013, the commentary to the current version of the RRTFB offers contradictory reactions to the Pape opinion. As noted above, characterization of an attorney as aggressive was defined as permissible. See RRTFB R. 4–7.13, Comments, Characterization of Skills, Experience, Reputation, or Record. However, the comments also state, citing Pape, that implying that an attorney would engage in combative or vicious tactics would violate the RRTFB. SeeRRTFB R. 4–7.13, Comments, Implying Lawyer Will Violate Rules of Conduct or Law (as an aside, there is nothing in Pape that indicates the ad in question implied the firm would violate the law; advertisements of the firm in question, Pape & Chandler, are rather ‘tame,’ if you will pardon the pun, and can be found on YouTube).

Without delving too deeply into the First Amendment issues presented by the Pape decision, it’s worth noting that legal writers described the decision as a “ridiculous anti-advertising case” and asked “When will the profession see that it will earn the respect of the public through the personal integrity of lawyers and the provision of quality services for reasonable fees — not through some phony notion of ‘dignity’ or by treating the public like children?” David Giacalone, Fla. High Court Puts Down Pape & Chandler’s Pit Bull, f/k/a (Nov. 17, 2005).

If the Florida Bar had not cited to Pape in its most recent version of the RRTFB, the decision could be ignored as being applicable only to the older version of the law. As it stands, because the current law both seems to contradict Pape, in its commentary concerning characterizations, and embrace Pape, in the commentary concerning advertisements that imply an attorney will violate the law. As nothing in the ads, in which the two attorneys discuss their focus on personal injury litigation and affinity for motorcycles, implicates a willingness to violate the law, and as the body responsible for both enacting the RRTFB and interpreting it is the Supreme Court of Florida, on which sits the author of Pape, a cautious attorney would likely act on the assumption that the decision in Pape is still controlling.

If there is any proof that the Pape decision is poorly written and has a negative effect, its that this was supposed to be a brief summary of the rules concerning advertising by attorneys in Florida, not a lengthy discussion that implicates

  • an attorney’s First Amendment Rights,
  • the wisdom of a judicial body having final enacting power and interpretation over laws that limit the ability of attorneys to solicit clients and cases before that court’s bench,
  • the scientific basis for some jurisdictions claiming that pit bulls are a distinct breed of dog that is inherently dangerous (and the merits of a judge conducting an independent investigation into that issue, even though it is only marginally relevant to the issues in the underlying case),
  • the folly of a court that is willing to enact what it describes as a finding of guilt (as if this were a criminal case), and sentence the defendant-attorneys to punishment even as it acknowledges that neither party to the matter briefed the issue of guilt and sentencing and without hearing testimony and directly receiving evidence, as it was not the trier of fact (instead of remanding the matter to the Bar Referee for reconsideration).

Thus, I think it’s best to simply acknowledge that Florida is a jurisdiction in which attorney advertising is policed based on the personal beliefs of its Supreme Court.

Florida’s RRTFB also bars the use of appeals to emotion and celebrities in attorney advertising (although local radio personalities can record narration for advertisements provided they do not appear to endorse the advertising attorney). See RRTFB R. 4–7.15.

Florida allows direct contact with prospective clients only when they have been prior clients of an attorney or are members of that attorney’s family. See RRTFB R. 4–7.18(a). Written communications must be marked as “‘advertisement’ in ink that contrasts with both the background it is printed on and other text appearing on the same page.” RRTFB R. 4–7.18(b)(2)(B) (Assuming Florida is not concerned about the use of invisible ink, this merely means that, if the general text of the advertisement is in black, then “advertisement” should be in red or some other contrasting color.) Additionally, all written communications regarding a specific occurrence should begin with “If you have already retained a lawyer for this matter, please disregard this letter.” RRTFB R. 4–7.18(b)(2)(E). Exceptions to these requirements are made for communications between attorneys, between attorneys and their own past and current clients, between attorneys and their family, or communications requested by clients. See RRTFB 4–7.18(b)(3).

Florida requires attorneys to not only retain a copy of an advertisement for three years after its last use, along with a record of all forums in which it is used, but also requires that attorneys submit a filing of that advertisement (or a transcript/translation thereof for electronic advertisements and advertisements not in English) 20 days prior to the lawyer’s first use of an advertisement, along with a fee of $150 ($250 if submitted less than 20 days prior to intended first use), and a listing of all media in which it will appear, the schedule of its intended use, and the duration of its intended use. See RRTFB R. 4–7.19(a), (b), and (h). Attorney advertising filings will then be judged for their appropriateness under the RRTFB. The information contained on the attorney’s website and advertisements containing only the name of the firm and other administrative information referenced in RRTFB 4–7.16(a) is exempt from this filing requirement. See RRTFB 4–7.20. The RRTFB does not address whether an attorney’s social media platforms would be considered part of their website, but it is safe to assume that they would not be considered exempt from the filing requirements given the overall strictness of Florida’s advertising regulations.

Florida permits attorneys to use trade names for the names of their firms. See RRTFB 4–7.21. It prohibits the use of the name of an attorney in public office being part of a firm name unless that attorney is “actively and regularly practicing with the firm.” RRTFB 4–7.21(e).

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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

Comments:

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).

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Attorney’s Guide to Ethical Marketing: Connecticut

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: Connecticut Rules of Professional Conduct 7.1-7.5 (“CT RPC”); Connecticut Superior Court Rules 2-28A, also known as the Connecticut Practice Book § 2-28A (“Ct. Prac. Bk.”) (the CT RPC are contained within the Ct. Prac. Bk., both of which can be found at State of Connecticut Judicial Branch, Connecticut Practice Book (last visited Dec. 12, 2018) (direct link to PDF); Connecticut General Statutes (“CGS”) § 51-86; CGS § 51-87; CGS § 51-87A; CGS §53-340A. 
  • Limitations on Direct Contact with Prospective Clients (Y/N): Yes, 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
    • 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: 2014

Comments:

Before delving into the substantive restrictions on attorney advertising in Connecticut, it is worth addressing the structure of Connecticut’s laws concerning attorney advertising.  Connecticut incorporates civil and criminal limitations on advertising for legal practices in both its statutes and Court Rules, with discrepancies between the two for disciplinary matters.  See Office of Legal Research, Connecticut General Assembly Report 2006-R-0577, Attorney Discipline (Oct. 20, 2006) (viewed at https://www.cga.ct.gov/2006/rpt/2006-R-0577.htm).  In what is never a good sign for clear and unambiguous regulations, the state’s legislative office in charge of legal research reported that the reason the Court Rules were controlling when discrepancies existed between them and the statutes was not because of a governing decision or statute addressing controversies of law, but rather because “in practice, the rules are followed.“  Ibid. (It might just be time for the Connecticut legislature to eliminate those laws superseded by the Rules of Professional Conduct.)  Per the guidance of the Office of Legal Research, it will be the “practice” to focus on the Rules of Professional Conduct, as incorporated into the Connecticut Practice Book by the Connecticut Judiciary. 

Connecticut prevents attorneys from directly soliciting clients, for the most, when those clients are private citizens and not also friends, family, or former clients.  See CT RPC 7.3(a).  However, Connecticut permits direct solicitation of a wide range of institutional clients, including non-profits, trade organizations, and for-profit businesses.  See id. This makes sense, as public policy’s desire to protect private individuals from manipulative legal solicitations is no longer served when addressing solicitations directed at organizations that often have sophisticated officers, to include their own attorneys.

Consistent with the Model Rules of Professional Conduct, Connecticut permits attorneys to advertise across all traditional and electronic mediums, and the commentary to the Rules of Professional Conduct even describes more advanced forms of digital advertising, such as PPC and in-app advertisements.  See CT RPC 7.2(a) and commentary.  Due to Connecticut’s record retention and filing requirements (which will be discussed below), however, attorneys must ensure that some form of record remains for all advertisements that they can submit for filing (sorry, early adopters, that means no disappearing content marketing on Snapchat).

In Connecticut, advertisements must include the name and address of at least one lawyer admitted in Connecticut responsible for the content of the advertisement, along with language addressing contingency fee details.  All advertising should be marked as “‘Advertising Material’ in red ink on the first page of any written communication and the lower left corner of the outside envelope or container, if any, and at the beginning and ending [sic] of any communication by audio or video recording or other electronic means.”  CT RPC 7.3(c). 

Connecticut requires that attorneys retain records of their advertisements, along with a record of when and where used for three years.  See CT RPC 7.2(b)(1).  Additionally, attorneys must comply with the mandatory filing requirements imposed by Section 2-28A of the Connecticut Superior Court Rules, which requires attorneys to submit their advertisements to the Connecticut Attorney Grievance Committee prior to or at the same time as an advertisement is first used.  Connecticut includes a procedure where the State Bar Counsel randomly selects advertisements for an audit or review procedure.

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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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