The Legalities of Legal Advertising

Nick Dmitrovich June 17, 2018

Did you know that at one point in history the marketing and advertising of your legal firm or law services was actually illegal? It took a Supreme Court ruling in the late 1970’s to overturn that forgotten rule, but despite the reversal, there are still regulations that law companies need to follow when it comes to promotional content. Failure to do so could result in formal reprimands, suspensions, or even the loss of one’s license.

It doesn’t matter if your firm is preparing a billboard advertisement, a television commercial, a printed ad, or a social media post – they all fall under the umbrella of communications about a company’s services and are thus governed by Indiana’s Rules of Professional Conduct. Two sections contain specific guidelines about advertising materials, sections 7.1 and 7.2.

If you boil down the root of what these sections are describing, the main thing to remember is that all communications need to contain truthful and accurate statements, among other stipulations. It sounds simple, but it’s very easy to include a detail that accidentally violates this rule. Further complicating things is the fact that, often, advertising materials are prepared by third-parties who may not be so well-versed on the legal world’s professional conduct guidelines.

So, that got us thinking. What are some seemingly-innocent ways in which companies could accidentally break the legal advertising rules? Let’s look at some ways.

Careful When Calling Yourself an Expert
If you call yourself an expert or specialist in a certain legal field, you need to have the credentials to back up your claims. Calling yourself a “divorce case specialist,” for example, because of a long track record of successful divorce cases, isn’t enough. Qualifying information must be provided to validate your claim of being a specialist.
Call It What It Is, an Advertisement
One of the most common ways in which law firms fail to satisfy the rules of conduct is by forgetting to label their promotional content as “advertising material.” It’s a small, but important, detail that often goes overlooked. This needs to be maintained on websites and social media posts about your company too.
Predicting the Future
If you’ve had a successful run winning dozens of trial cases, it’s in no way indicative as to how you’ll do the next time. The rules of conduct specifically prohibit making any implied predictions about future success, so don’t promise your clients a home run just because you’ve been a statistically good batter.
Be Clear and Careful with the Facts
One of the more confusing aspects of the professional conduct rules is part that deals with misleading statements, which lawyers are not allowed to make in their advertisements. It’s very easy to make an accidental misleading statement, even when saying something that’s technically true. For example, there was an Indiana case in 2002 wherein a law firm had featured a statement to the effect of “you can expect more from our attorneys,” but not everyone depicted in the advertisement was actually an attorney. The court ruled against the law firm, finding the advertisement misleading.
Review after Delegating
Marketing and other correspondence is frequently delegated to non-lawyer staff members, interns, or others. This is particularly true with online and social media communications. It’s important to remember that lower-level employees are likely unfamiliar with many of the rules of professional conduct for lawyers and are thus totally unaware of how problematic well-intended language can be within legal advertisements. So, no matter what, be sure to have a qualified lawyer review all materials before they’re published on any medium.

Because of how easy it is to accidently violate the professional conduct rules about advertising, the best thing your company can do is review all materials before they’re published. Or better yet, have them reviewed by bar association officials or outside council who can help you catch costly errors before they adversely impact your company. There’s no harm in double checking to ensure compliance. Take the extra minute to look things over before inadvertently creating a costly mistake.

A Closer Look: Indiana’s Rules about Legal Advertising

Excerpts from Rule 7.1 and 7.2 of the Indiana Rules of Professional Conduct.

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication will be in violation if it:
- Is intended to harass or maliciously injure another;
- Contains an implied prediction of future success;
- Appeals primarily to a lay person’s fear, greed, or desire for revenge;
- Compares the services provided by the lawyer or a law firm with other lawyers’ services, unless factually substantiated;
- Contains a dramatization or re-creation of events, unless conspicuously disclosed;
- Contains materials likely to create an unjustified expectation about a lawyer or law firm or a person’s legal rights;
- And others.
Advertising materials need to be conspicuously labeled “advertising.”
A lawyer shall not give anything of value to a person for recommending or advertising the lawyer’s services (except, of course, to pay the reasonable costs of advertisements)
Communications need to include the name and office address of at least one lawyer or law firm responsible for its content.