If you outsource your legal marketing to an agency, you must ensure it adheres to the rules governing legal advertising.
Your Advertising Must Not Mislead
While there are specific rules in each state governing legal advertising, the overarching principle is encapsulated in the first sentence of Model Rule 7.1: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”
It is much harder to know the impact of a potentially misleading ad than it is to know whether a contract paralegal’s work fulfilled the lawyer’s duties of competence and diligence. If an advertising agency or platform does not follow the rules of professional conduct, the potential harm to the general public is unquantifiable.
Generally, to be subject to attorney advertising rules, the communication must be made by the attorney for the primary purpose of soliciting business. If someone else says something about you or your services, the advertising rules do not apply because you did not say it. If you put out a statement publicly, but the statement is not intended to solicit business (a tricky point heavily analyzed by regulators), it will not be subject to advertising rules.
But an ad you purchase on Avvo or a pay-per-click ad you place on Google is a statement made by you for the primary purpose of soliciting business, and it is advertising. Under Model Rule 5.3, you must supervise the service publishing and maintaining the ad to ensure compliance with your ethical obligations. The advertising service may not permissibly violate the rules any more than you may, so if your ad is holding you out as an expert in an unfamiliar area of practice, you have a real problem.
You Cannot Control Many Digital Advertising Platforms
On your website, blog, or social media platforms, you can often quickly revise your ad to ensure compliance with your state’s ethical rules. However, with many digital advertising platforms, your ability to ensure the ad is just as you want it to be and remains that way is extremely limited.
Consider an ad on a directory site like Avvo.com.1 With Avvo, you can advertise your legal services to specific subscribers using keywords. You can even edit the tagline of your ad and your profile based on the keyword. But it is important to remember you have no actual control over the programming of the site. For instance, if you are a personal injury lawyer, it is possible that an error made by your preferred advertising platform will start showing your ad in response to searches for trusts and estates lawyers—potentially putting you in the crosshairs of Model Rule 7.1.
You Cannot Delegate Everything
The ABA Model Rules make it clear that even when you engage non-lawyers to perform functions in your practice (be it trust accounting, money management, legal research, or administrative functions), they cannot commit acts you are not permitted to commit. The clearest statement of this is Model Rule 5.3, Responsibilities Regarding Non-Lawyer Assistance, which imposes a duty to ensure non-lawyers are not violating legal advertising rules. You are responsible for a non-lawyer’s violation of the rules if you knowingly order or fail to remedy the violation.
Rule 5.3 is written in the context of in-house assistance, but comment 3 to Rule 5.3 clarifies that it also applies to non-lawyers who provide services you contract—including document management companies and contract paralegals: “When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.”
How to Ensure Advertising Compliance
Practically speaking, you are not required to look over the shoulder of your service providers, nor do you need to know how the back office work is done. Instead, you must make reasonable efforts to ensure that advertising complies with attorney advertising rules. If your address must appear on your advertisements, you need to make sure that when you design your ad with a design agency, your address appears.2 If your state prohibits the use of certain words like specialist, you need to work with the design agency to ensure that the word does not appear.
Then, once the ad is live, you are responsible for monitoring how it continues to appear. Reasonable diligence in monitoring the way your ad is presented is required to make sure you continue to remain in compliance.
You can also ensure compliance using other media you do control, such as your website. For example, if a banner ad or a Google Adwords ad contains only a few words (which cannot possibly contain every disclaimer required by your state’s rules), the ad will link to your website, where you can ensure that all requirements are met.
Bottom line: Advertising through a service in which you abdicate some level of control over your presentation does not relieve you of your ethical obligations. You remain responsible for monitoring your public statements to remain compliant.
Featured image: “Advertising Advertisement Branding Commercial Concept” from Shutterstock.