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Texas Lawyer Advertising: Being Strategic While Remaining in Compliance

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Texas Lawyer Advertising: Being Strategic While Remaining in Compliance

  1. 1. STATE BAR OF TEXAS ADVERTISING RULES What You Should Know About The
  2. 2. CHANGE ON THE HORIZON • Part VII of the Texas Disciplinary Rules of Professional Conduct governs lawyer adverting and solicitation • The Texas Supreme Court, upon request of the State Bar of Texas Board of Directors, ordered a vote of bar members on proposed amendments to the Texas Disciplinary Rules of Professional Conduct and Texas Rules of Disciplinary Procedure, including those in Part VII • Voting took place by paper and online ballot in February and March of 2021 • The membership approved all of the proposed amendments and they were sent back to the Texas Supreme Court for final approval
  3. 3. A COMPLETE OVERHAUL • The rules on advertising and solicitation have been completely overhauled – Current Rules 7.01 to 7.07 will be deleted in their entirety – Proposed Rules 7.01 to 7.06 will be added in their place • The new rules simplify and modernize lawyer advertising and solicitation guidelines
  4. 4. RULE 7.01(A): COMMUNICATIONS CONCERNING A LAWYER’S SERVICES • This is the key provision in the advertising and solicitation guidelines. • The first provision states the basic rule that is the cornerstone in this area: namely, a lawyer shall not make a false or misleading statement about legal services. • This rule, which is rooted in constitutional jurisprudence, applies to all communications offering legal representation.
  5. 5. RULE 7.01(B): ADVERTISEMENT VS SOLICITATION • The terms “advertisement” and “solicitation communication” are defined in the new rules and are currently neither defined at all: – An advertisement is a communication directed to the public at large. • Examples include: websites, billboards, radio or television ads – In contrast, a solicitation communication is a communication directed to a specific person, “which reasonably can be understood as offering to provide legal services that the lawyer knows or reasonably should know the person needs in a particular matter.” • Examples include: direct mail and targeted digital marketing like social media ads • A communication falls into neither category unless it is “substantially motivated by pecuniary gain.”
  6. 6. RULE 7.01(B): EXCLUDES NONPROFITS • Lawyers promoting various forms of non-profit legal services, such as legal aid for the poor, do not need to worry about complying with the disclosure and filing requirements that are applicable to advertisements and solicitation communications. • They must still comply with the rule against false or misleading statements.
  7. 7. RULE 7.01(C): TRADE NAMES • This is one of the biggest changes in the new proposed rules. • Because statements that are truthful and not misleading are constitutionally protected, this rule abandons the traditional prohibition against the use of trade names. • Therefore, unless it is false or misleading, the use of a trade name will be permitted. • Committee on Disciplinary Rules and Referenda (CDRR) Commentary: – Today, most states allow the use of non-misleading trade names. New York permitted the use of trade names starting in June 2020. Even Alaska already allows the use of trade names. As of March 2021, Texas is the only remaining state to prohibit the use of trade names.
  8. 8. RULE 7.02: ADVERTISEMENTS • The requirements of this rule will feel familiar because they are rooted in earlier law. • An advertisement: – Must identify a lawyer responsible for its content (and the lawyer’s primary practice location) – May disclose that the lawyer has been certified or designated by an organization as possessing special competence, but only if by the Texas Board of Legal Specialization or a group TBLS accredits – Must disclose whether a client who is represented on a contingent fee basis will be obligated to pay for other expenses, such as costs of litigation – That advertises a specific fee makes the lawyer obligated to only charge that fee as long as the ad is being disseminated
  9. 9. RULE 7.03(A, B, & C): SOLICITATION • This rule continues traditional prohibitions against in-person solicitation but now makes clear that the anti-solicitation ban applies not just to in- person contact, but to “telephone, social media, or electronic communication initiated by a lawyer or a person acting on behalf of a lawyer . . . that involves communication in a live or electronically interactive manner.” • For the first time in Texas, this rule allows solicitation communications with “a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters.” • The rule continues to prohibit any communication that involves “coercion, duress, overreaching, intimidation, or undue influence.”
  10. 10. SOCIAL MEDIA SOLICITATION: GREY AREA? • In the example to the right, the commenting attorney is soliciting employment • However, the person who posted was clearly looking for an attorney • The attorney did NOT proactively comment or contact the person without prompting • The attorney DID provide his or her name and a link to their website, encouraging the person to contact their law firm • Is this a violation of the new State Bar of Texas advertising rules?
  11. 11. RULE 7.03(D & E): MORE ON SOLICITATIONS • A written solicitation communication must not be “misleadingly designed to resemble a legal pleading or other legal document” and, with limited exceptions, must be “plainly marked” ADVERTISEMENT. – Lawyers no longer have to disclose how they obtained the information prompting the solicitation – The specifications on how the word ADVERTISEMENT has to be graphically displayed have been removed • This provision maintains the longstanding rule that a lawyer may not pay or give anything of value to another person for soliciting or referring prospective clients, except that now “nominal gifts given as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services” are permitted.
  12. 12. RULE 7.03 (E & F): REFERRALS & PAYMENTS • Reciprocal Referrals – Reciprocal referral agreements are now allowed provided “(i) the … agreement is not exclusive; (ii) clients are informed of the existence and nature of the agreement; and (iii) the lawyer exercises independent professional judgment in making referrals.” • Formerly had to include this information in advertisements and now you don’t • Payment or Gifts to Clients – The rule continues the prohibition against paying or giving anything of value to clients (other than litigation expenses and other financial assistance permitted by the rules), except that now “ordinary social hospitality of nominal value” will be permitted.
  13. 13. RULE 7.04: FILING REQUIREMENTS • This rule continues the filing requirements for certain advertisements and solicitation communications. • It also continues to allow lawyers to seek pre-approval of advertisements and solicitation communications.
  14. 14. RULE 7.05: COMMUNICATIONS EXEMPT FROM FILING REQUIREMENTS • This rule greatly expands the number of situations in which advertisements or solicitation communications are exempt from the filing requirements of Rule 7.04. – In particular, “(a) any communication of a bona fide nonprofit legal aid organization that is used to educate members of the public about the law or to promote the availability of free or reduced-fee legal services” is exempt.
  15. 15. RULE 7.05(E): MORE EXEMPTIONS • “Information and links posted on a law firm website, except the contents of the website homepage” are exempt from filing. • Professional newsletters are exempt if they are sent to: – (1) existing or former clients; – (2) other lawyers or professionals; – (3) persons known by the lawyer to be experienced users of the type of legal services involved for business matters; – (4) members of a nonprofit organization which has requested that members receive the newsletter; or – (5) persons who have asked to receive the newsletter.
  16. 16. RULE 7.05(G): MORE EXEMPTIONS • A lawyer is not required to file “a communication in social media or other media, which does not expressly offer legal services, and that: – (1) is primarily informational, educational, political, or artistic in nature, or made for entertainment purposes; or – (2) consists primarily of the type of information commonly found on the professional resumes of lawyers.”
  17. 17. RULE 7.06: PROHIBITED EMPLOYMENT • This rule clarifies when a violation of various rules dealing with communications about legal services, or general principles of misconduct, results in: – personal disqualification, – imputed disqualification of other lawyers in a firm, or – restrictions on referral-related payments. • Basically, if someone either inside your own firm or outside of your firm violates the rules in acquiring a matter, you cannot be employed on that matter. If you are not the violator, as soon as you find out or reasonably should know about the violation, you have to terminate representation and/or work on the matter. • Largely pulled from ABA Model Rule 7.2
  18. 18. OMISSIONS IN THE NEW RULES • OFFICE LOCATIONS! Previously, a lawyer or firm could not advertise the existence of any office other than its principal office unless it was staffed by a lawyer at least three days or week or specified “by appointment only” • CASE RESULTS! Lawyers no longer have to include the attorney’s fees and litigation expenses withheld from the gross amount of a verdict or settlement, or the nature of the case matter (including damages or injuries sustained by the client) when advertising case results – If your award is subsequently reduced, you have to say that prominently next to wherever you’ve posted about it
  19. 19. GETTING SBOT APPROVAL The Who, What, When, and How of
  20. 20. TIMELINE • Pre-approval: at least 30 days prior to the first dissemination or the first print deadline of the publication – A response will be mailed within 25 days of the date of receipt of the completed application packet – This means if you are on a tight deadline and want pre-approval, it’s better to submit the application early • Contemporaneous approval: no later than 10 days after the first dissemination
  21. 21. SO, WHICH ONE IS BETTER? • Pre-approval: – Print Advertisements – Billboards – Direct Mail – Anything that will be expensive to redo should SBOT have edits • Contemporaneous: – Websites – Email Marketing – Digital / Online – Anything that can be easily edited/updated in real time and with little additional cost
  22. 22. WHAT TO SUBMIT • A copy of the advertisement or solicitation – This includes a printed copy of the homepage of your website or other digital advertisement, or a copy of your direct mail piece or other print advertisement – For radio or TV ads, this includes a production script and other descriptive details (e.g., illustrations, actions, events, scenes, and background sounds) – For ads in another language, you must also submit an English translation • A completed application form • Payment ($100 via check or credit card) • EACH ad must be submitted separately, with its own application form and payment
  23. 23. WHO SHOULD SUBMIT • The form requires a lawyer’s name, bar card number, and signature for submission • The submitting lawyer becomes the one responsible for the ad submission, and therefore responsible for submitting the required edits required by SBOT, so make sure it’s someone who reads their mail (and has a backup person who reads it when they’re out) and will respond • The submitting lawyer is also the one who will face disciplinary action if the proper steps are not followed after submission
  24. 24. APPROVAL OR NONCOMPLIANCE • If the State Bar of Texas approves the submission, it is considered “binding” in favor of the submitting lawyer • A finding of “noncompliance” is NOT binding, and gives the submitting lawyer 15 days to: – Make the corrections and return the revised advertisement or solicitation to SBOT for review, OR – Give notice that the lawyer intends to stop disseminating the advertisement permanently with no intention of distributing it again in the future • If SBOT does not receive one of the two items above within 15 days, the matter can get referred to the Chief Disciplinary Counsel’s office for disciplinary action
  25. 25. CONNECT WITH STACEY • Facebook: @MarketingLawyers • Twitter: @staceyeburke • Instagram: @MarketingLawyers • LinkedIn: /company/stacey-e-burke-p-c • Website: www.staceyeburke.com • My e-newsletter: http://bit.ly/StaceyMail

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