+ Public Policy Considerations With
Regard to Attorney Advertising
Traditionalists maintain that ethics rules protect the
public and mitigate risk. The futurists counter that
protectionism is only a virtue if the thing it shelters
from change is worth preserving in the first place.
There was a time, before 1977, when the rules
prohibited lawyers from advertising their
Legal advertising has come a long way in the last 40
years, but the rules still suffer from decades-long
+ Do Lawyer Advertising
Restrictions Protect the Public?
It is hard to tell. At a minimum, no available empirical
data supports these various limits.
Worse, they very obviously hinder lawyers’ ability and
willingness to risk reaching people most in need of
And the cynicism is apparent: lawyers left unbridled
will mislead the public and otherwise violate the rules.
+ The lag between the technology adoption lifecycle and ethics
regulators’ prescience about lawyers’ use of that technology in legal
advertising is incapacitating and getting worse. For example, most
states have still not issued specific guidance on how lawyers can
use social media ethically.
Our Duty to Stay Up-to-Date
Lawyers have a duty to keep themselves informed of
changes in the law, including the benefits and risks
associated with relevant technology.
In today’s world of social media, relevant
technology includes Facebook, Twitter, Instagram,
LinkedIn, SnapChat, and more.
+ In August 2018, the ABA Adopted Changes to the Model Rules
The ABA approved long-awaited changes to its Model Rules on legal
advertising at its 2018 House of Delegates meeting. While the rule revisions
do not go as far as some had hoped, they serve to simplify, streamline, and
modernize the guidelines for lawyers looking to advertise their services in the
+ Sample ABA Model Rule Revisions:
Model Rule 7.2 was revised to now allow lawyers to:
Simply post “contact information” such as a website or email
address instead of an “office address” on marketing
materials. This is a nod to virtual law practices.
State that they are “specialists” in a particular area based on
experience, education, and training rather than needing a
certification, provided that this assertion does not run afoul of
the “false or misleading” standard in Model Rule 7.1.
Give “nominal” thank you gifts to people who recommend
them to clients, as long as the gift is not expected or received
as payment for the recommendation.
Use “all media” (a change from “written, recorded or
electronic communication, including public media”).
ABA Model Rule Revisions, continued:
Model Rule 7.3 was revised to now allow lawyers to:
Forego labeling written marketing materials as “advertising,” based
on the notion that consumers are used to receiving paper and
electronic ads and can distinguish them from other types of
correspondence without a written notice.
Model Rule 7.3 defines “solicitation” in new subsection (a),
continuing to prohibit live solicitation, which includes in-person
or other real-time visual or auditory communication, but now
permits real-time electronic solicitation via means such as texts
or tweets on the theory that these methods are more like
written advertisements than in-person solicitation because
consumers can pause before responding and/or ignore them.
+ State Rules Reign Supreme
Lawyers must comply with the state rules that govern their conduct and
not the ABA Model Rules, unless, of course, when their state rules mirror
the Model Rules.
+ What do we have to submit for review?
Most public marketing efforts must be submitted to the Advertising
Review Committee as required by Part VII of the Texas Disciplinary
Rules of Professional Conduct. But not all advertisements are required
to be submitted for review. Some ads are exempt from the submission
2019 Proposed Updates in Texas
Trade Names: Probably the most significant departure from
the current rule is a revised rule that would allow law firms to
use trade names. But you still can’t be false or misleading.
Old way: Stacey E. Burke, P.C.
New way: Burke Business Lawyers
Board Certification: At the first instance of referencing this
credential, it must be spelled out entirely, i.e., Board
Certified in Family Law by the Texas Board of Legal
Specialization. But after that, an attorney can simply say
‘Board Certified’ without the full text. Lawyers have not been
required to say “not” board certified since 2005.
2019 Proposed Updates, cont.:
Submission Timeframes: Lawyers currently have 10 days to
cure violations, but the update will increase this to 15 days.
This is a great change because lawyers frequently receive the
letter requesting the change just a few days before the 10-day
period is up, causing unnecessary anxiety and stress.
Extending the deadline by five days helps.
Electronic Submission Filing: The Ad Review Committee has
traditionally operated under the ‘technology is bad’ mindset,
requiring all submissions be printed and mailed into the Austin
office. Recently, they began allowing follow-up communications
by email, but the majority of correspondence was conducted by
snail mail. Under the proposed revisions, an online ‘portal’ will
be created by an outside vendor that would allow firms to
submit and pay for their Ad Review applications online, as well
as track the status of the review process.
According to Gene Major:
On average, the Advertising
Review Department handles
about 3,500 advertisements
and solicitation communications
per year. Many submissions
have initial problems that we
clearly identify. This provides
the opportunity for individual
attorneys and firms to make
necessary changes so their ad
or solicitation is compliant with
the Texas Disciplinary Rules of
Roughly 80% of the ads and
submitted to the State Bar of
Texas are eventually approved
for public dissemination.
If a firm or individual lawyer is
communicating with current and
former clients, others lawyers,
or other professionals, then
they are NOT required to make
an Ad Review submission as long
as the communication is not
false, misleading or deceptive.
Weird Things in Texas:
Board Certification: The advertising lawyer or law firm must
be competent in the advertised field of law and cannot say they
are specialized or certified unless they or their entire firm have
been certified by the Texas Board of Legal Specialization.
Past Results: Must provide information dealing with the nature
of the case and further details into the type of amounts stated in
the ad. A disclaimer does not cure the violation.
Cumulative Results: Cumulative results amounts CANNOT be
presented in ads without each case fulfilling the required items
Having a social media presence humanizes you
and your law firm by showing your audience what
you care about.
Which social media sites should you use? It
Personal injury and/or
divorce lawyers should be on
Facebook to reach individual
Lawyers servicing business
clients might be better
served by focusing on
+ Original Graphics
A great way to engage potential customers on social media is to create
original graphics. They need to be simple and to the point.
+ Manage Your Local Listings:
When a prospective client is deciding if they should contact
your firm, they will look you up online. What will they find if they
search for you?
While the attorneys at your law firm and the firm itself should have a
variety of digital mentions, social proof via online reviews on local
listings sites like Yelp or the Better Business Bureau have a huge
impact on consumer decision making.
Video is a good way to show off your law firm and connect with your
audience. Videos can be engaging, shareable, and used in many
different ways. You can add them to website pages, social media
channels, email newsletters, and they will allow you the opportunity to
rank for terms within video communities.
It’s All About That Mobile
Adapt all of your digital marketing efforts to mobile devices.
Even better – design for mobile first!
Understand that most people are going to be viewing your
website on a small screen. So having a responsive website that
looks perfect on a mobile device is critical.
When it comes to interacting with clients, many want to
communicate via a mobile device – and that doesn’t mean they
want you to call them. Clients prefer to communicate by text
message, email, and social media and expect a quick
response. So it’s not just digital assets that have to be mobile,
law firm communications do too.
+ Live Video / Social Video
Worthwhile professional interactions happen on social media everyday.
And, research shows users prefer video and imagery to text and BIG
TIME. Live video is still valuable after it’s “live” as video that you can
repurpose for other uses.
+ Voice Search
Voice searches tend to be more conversational than written searches. Instead
of two to three keywords, vocal searches are often made in complete phrases.
This will change the way we think about keywords: instead of a heavy focus on
two-word keyword phrases, firms will need to consider longer phrases,
anchored in a more conversational tone.
During the first six months of 2018, more than 5,000 lawsuits were
filed in federal court alleging businesses were in violation of the
1990 Americans with Disabilities Act (ADA), according to a mid-
year report from Seyfarth Shaw. In most cases, these lawsuits
were about websites.
For a website to be accessible to disabled people, the content must be
coded so that screen-reading software can convert the words to an
audio translation. Video that appears on a website must include
descriptions for the deaf. Also, all interactive functions must be operable
through keyboard commands for people who can’t use a mouse.
No formal government standards exist for private businesses to follow to
ensure their websites comply with the ADA, although a consortium of
web innovators has created guidelines, known as the Web Content
Accessibility Guidelines, to make websites more accessible to disabled
people. Government websites already follow those guidelines.
Web Accessibility + SEO
Google grants websites that meet accessibility standards a
higher ranking in search. The way a search engine like Google
“reads” a website is similar to how blind person would: not
being able to view an image, Google “reads” the alt text. When
you incorporate accessibility features into your firm’s web
design, your site’s Search Engine Optimization (SEO) benefits!