1. Using Modern Marketing Tools in
Compliance with Disciplinary Rules
Richard C. Price, Fort Worth
D. Todd Smith, Austin
Peter S. Vogel, Dallas

2. Social Media Platforms for Lawyers

28. Advertising Rules: Part VII of the TDRPC
• Purpose is to protect the public from false,
misleading, and deceptive communications
• Rules specify conduct for attorneys who
promote services to public
• Violations subject lawyers to discipline
• New: Violations may also subject lawyers to
liability under civil barratry statute

29. Why Market Via the Internet?
• As of 12/2011, the lawyer/resident ratio in Texas
was 1/280
• We have 86,400 active lawyers and add 3,000
new lawyers per year
• Lawyering is becoming more of a commodity
• More competition for less work requires more
creative and effective marketing
• The Internet is a cheap and effective way to
reach large numbers of potential clients

30. Why Use Social Media?
• Establish firm brand and market reach
• Share expertise and news
• Increase firm visibility and traffic
• Create goodwill by pointing to helpful
resources
• Can show a little of yourself and help
potential clients get to “know” you

31. And Then There Are the Advertising
Rules
• Rule 7.02 prohibits false, misleading, or
deceptive communications
– Material misrepresentations or omissions
– Guaranteeing results or creating unjustified
expectations
• Rules 7.03 & 7.05 govern prohibited
solicitations (including digital) and payments
• Rule 7.04 & 7.07 cover advertisements and
filing requirements

32. Advertising Rules and Social Media
• Filing requirement applies when:
– electronic communication addresses the
qualifications or the services of lawyer or firm
– not exempt under DR 7.07(e)
– generally available to the public
• Communicating attorney must file the
communication with the ARC before or
concurrently with first dissemination

33. Evolution of Ethical Concerns
• In 2005, SCOTX expressly applied the
Advertising Rules to electronic or digital
communications
• Blogging took root shortly thereafter, followed
by Facebook, Twitter, and others
• No one knew for sure how the ARs would
apply to social media
• Issue has reached new importance, since new
statute treats violation of ARs as barratry

34. The ARC’s Take: New Comment 17
• In 2010, the Advertising Review Committee
released revised Interpretive Comment 17
• Purpose was to address issues with
different kinds of Internet-based
advertisements, including blogs, social
media, and web-based display ads
• Focus is whether they are advertisements
subject to filing requirements, but helps
guide behavior on social media for all
purposes

35. IC 17 on Blogs and Status Updates
“Blogs or status updates considered to be
educational or informational in nature are
not required to be filed with the Advertising
Review Department. However, attorneys
should be careful to ensure that such
postings to not meet the definition of an
advertisement subject to the filing
requirements.”

36. IC 17 on Landing Pages
“Landing pages such as those on
Facebook, Twitter, LinkedIn, etc. where the
landing page is generally available to the
public are advertisements. Where access
is limited to existing clients and personal
friends, filing with the Advertising Review
Department is not required.”

37. What Does This Mean?
• Electronic communications like social media posts
are advertisements in the public media subject to
the filing requirements of DR 7.07 unless exempt
• New Pitfall: Gov’t Code § 82.065 now provides
that solicitation conduct violating disciplinary rules
constitutes barratry
• Violate the DRs in social media = exposing oneself
to barratry under new statute
• Fee forfeiture, damages, and monetary penalty are
among remedies available—and they are not
limited to actual clients

38. Where Is the Line?
• Exercise caution about providing information beyond
what is exempt under DR 7.07(e)
– “Tombstone” information
– Areas of practice
– Dates of admission
– Technical and professional licenses
– Foreign language ability
– Prepaid group legal service plans
– Acceptance of credit cards
– Initial consultation fee or fee schedule
– Sponsorship of charitable, civic, or community program or
event or PSA
• None of this needs to go before Ad Review

39. Where Is the Line?
• But the ARC says filing is not required for
blogs or status updates that are merely
educational or informative in nature
• The most common types of legal-related blog
and social-media posts do not trigger filing
requirements or related rules, as long as the
content would not otherwise be considered an
advertisement and is not false or misleading
• Again, exercising good judgment is key

40. Using Modern Marketing Tools in
Compliance with Disciplinary Rules
Richard C. Price, Fort Worth
D. Todd Smith, Austin
Peter S. Vogel, Dallas