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To market, to market!

By Louie H. Castoria Ben Armistead | Jul. 12, 2019

Law Practice,
Ethics/Professional Responsibility

Jul. 12, 2019

To market, to market!

Ethical lawyer advertising can be like a high-wire act.

Castoria louie web

Louie H. Castoria

Partner, Kaufman, Dolowich & Voluck LLP

425 California St 21st Fl
San Francisco , CA 94104

Phone: (415) 926-7601

Fax: (415) 926-7601

Email: lcastoria@kdvlaw.com

UC Berkeley Boalt Hall

Louie is an independent mediator and a member of the Mediation Society. He co-chairs the national Professional Liability Practice Group at Kaufman Dolowich.

0712 ldj castoria
Shutterstock

Marketing a lawyer or law firm requires the Flying Wallendas' sense of balance.

Like the famous tightrope-walking family, lawyers promoting themselves in the media, including social media, need a balancing pole to lower their centers of gravity and increase their moment of inertia (resistance to outside forces, such as gusts of wind). For law firms the balancing isn't physical; it's knowing and skirting the liability and regulatory risks involved in touting their skills while still stating a compelling case as to why a client should retain them, out of roughly 1.4 million U.S. lawyers.

There are many online resources to help lawyers and firms practice the art of modern legal marketing -- an art that increasingly relies more on social media savvy than having a low golf handicap. An oft-repeated nugget of advice: Don't write like a lawyer. Plain, clear writing is key to holding a reader's attention and creating a connection. Writing the way most pleadings and appellate briefs are written -- a subject for another day -- erects a wall between the lawyer and the reader. It lays an "Unwelcome" mat at the front door.

Here are some of the legal pitfalls that high-wire lawyers need to consider when promoting their practices online.

Advertising Restrictions

California's Rules of Professional Conduct, Rule 7.2, "Advertising," generally allows ads "through any written, recorded or electronic means of communication, including public media." Anyone who has listened to a baseball game on the radio while driving on a California highway has heard lawyers' ads and seen lawyers' billboards.

Together with Rule 7.1, "Communications Regarding a Lawyer's Services," Rule 7.2 restricts ads in two main ways:

• Content must not be false or misleading. The comments to Rule 7.1 give two common examples of misleading communications:

- a statement that the lawyer charges no fee unless the client receives a recovery, but the client remains responsible to pay for costs or expenses; and

- statements about "wins" that imply, or fail to refute, that the lawyer can achieve similar results in other cases, regardless of their facts or merits.

• Incentives. Lawyers may pay the reasonable fees charged by media outlets and consultants. (Those baseball radio spots and billboards are not public service ads.) But incentive compensation is improper if it compromises a lawyer's independence in representing a client. Examples: reciprocal referrals among lawyers that are not in a client's best interests, and gifts or gratuities to others for referring a client if there was no prior agreement to make such payment. Lawyer referral services are generally permitted.

Note that when a lawyer hires a public relations, social media, or advertising service to prepare ad content ("copy"), the lawyer remains responsible under Chapter 5 of the Rules of Professional Conduct to supervise the service provider and prevent the publication of statements that violate the Rules.

Isn't That Special?

"Misleading" can be a subjective standard, but one bright-line marketing taboo is falsely representing oneself to be a certified specialist in one of the State Bar's 11 accredited specialty practice areas: Admiralty/Maritime, Appeals, Bankruptcy, Criminal, Estate/Trust/Probate, Family, Franchise/Distribution, Immigration, Legal Malpractice, Taxation, and Workers' Compensation. Under Rule 7.4, "A lawyer shall not state that the lawyer is a certified specialist in a particular field of law" without having that certification.

The key word in this restriction is "certified." Rule 7.4 goes on to clarify that a lawyer may state that he or she "specializes in, is limited to, or is concentrated in a particular field of law," so long as that is true.

I do not have the State Bar's appellate certification, but throughout my 39-year legal career I have done appellate work, mostly in cases I handled in the trial court. If I could tally the hours spent on appeals I'd be surprised if they amounted to over 10% of my work. Under Rule 7.4, could I permissibly say in a blog post that I'm an "appellate specialist" so long as I didn't include the word "certified"?

Rule 7.4 refers back to Rule 7.1, making it clear that my statement must not be false or misleading. In my view, I am not an "appellate specialist," and I don't use that phrase, though I do say, truthfully, that I handle appeals. The two rules in combination tell me that I certainly can't say I'm "certified," and probably shouldn't promote myself as a "specialist."

This is one area of advertising where "mere puffery," as we called exaggerated claims back in 1L Contracts, shouldn't take place. If I were choosing a heart surgeon I wouldn't want a "specialist" whose practice consisted of ten per cent hearts, ninety percent appendixes. I don't know where the line should be drawn -- is a 50/50 heart-to-appendix ratio sufficient to be a specialist? How about 75/25?

Bottom line: don't lie or exaggerate about specialization. Apart from the State Bar-related concerns, a legal malpractice plaintiff will undoubtedly claim that he or she relied on the lawyer's advertised claim of having special expertise, and hold to that standard of care. As a self-check, what percentages did you put on your E&O application?

Whose Line Is It?

Intellectual property plays a large role in marketing any business or professional service. As the concept is a legal one, we attorneys might be expected to understand it. But the temptation is strong: there is so much accessible content out there in the Multiverse. Surely no one will notice a short copy-and-paste, right?

Wrong. Owners of copyrighted material view users of their content in the same way the owner of a Jaguar XJ-220 views a joyrider who hot-wires the car and takes it out for a spin.

What's more, the user often does not know who is the real owner of the copyright. A photograph may appear on a website under a license from the owner, but the licensee typically does not have the owner's authority to let others use it. Why take the risk when there are many reputable online sites that license stock photos and illustrations?

I am not an IP specialist, but as an author I'm generally aware of the rules of the road, and understand a copyright owner's reasonable expectation that just because the Jag is in the driveway doesn't mean it's being offered to the public. Get written permission when permission is required, and always assume it is required.

Private Eyes

Lawyers receive a lot of confidential information: health records, company profit-and-loss statements, dirty little secrets, and the like. It is important to remember that the information is the client's, and should not be used in self-promotion without the client's written consent.

California Business and Professions Code section 6068, subd. (e) (1) states that it is every lawyer's obligation "To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Not much wiggle room there.

Even if the client isn't identified by name, referring to a "win," based on the statute of limitations, for an accounting firm in your client's town, in a case alleging a $7 million tax computation error, isn't likely to improve that client's business. "Yes," I hear you saying, "but it's public record!" The malpractice action will be, too.

Takeaways

To sum up, marketing a law firm is fraught with nearly as many perils as not marketing it. You can set yourself up for a fall either way. A few "don'ts" to help you make it across chasm:

• Don't stray from the unvarnished truth in public communications, and don't let your PR team do so.

• Don't claim an area of specialization that you can't prove you have through certification or genuine experience.

• Don't use someone else's intellectual property or a client's confidential information without written permission.

And one last one, for when you're out there on the marketing high wire, keeping your balancing pole firmly in both hands:

Don't look down. 

#353477

Ben Armistead

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