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Advertising and Related Issues:
What’s in Your
Business Development Toolbox?
David Courreges
Adam Loewy
D. Todd Smith
Overview
• Newer lawyers tend to be part of the
“Facebook generation”
• More natural for them (you?) to share
information online
• Tend to see work and personal lives as
more integrated
Overview
• Focus is on social media in context of
advertising rules
• Can lawyers use social media to promote
their practices?
• How can it be done ethically?
Am I Likely to Benefit?
• Solo/small firm practitioners: Does your
law firm have an internet presence? How
else do clients find you?
• Practitioners in a firm of any size: Would
you like to establish a niche or a “personal
brand”?
Advertising Rules: Part VII of the TDRPC
• Purpose is to protect the public from false,
misleading, and deceptive
communications
• Rules specify conduct for attorneys who
promote services to public
• Violations subject lawyers to discipline
Advertising Rules: Part VII of the TDRPC
• As of 2011, violations expose attorneys to
liability under civil barratry statute
Why Market Via the Internet?
• The lawyer/resident ratio in Texas is about
1/280
• We have more than 90,000 active lawyers
and add 3,000 new lawyers per year
• Lawyering is becoming more of a
commodity
Why Market Via the Internet?
• More competition for less work requires
more creative and effective marketing
• The Internet is a cheap and effective way
to reach large numbers of potential clients
• Establish brand and market reach
• Share expertise and news
• Increase firm visibility and traffic
• Create goodwill by pointing to helpful
resources
• Can show a little of yourself and help
potential clients get to “know” you
Why Use Social Media?
Social Media Platforms for Lawyers
• Blogs
• Google+
• YouTube/Vimeo
• Avvo
A few examples…
Examples of Social Media’s Reach
Examples of Social Media’s Reach
Thanks, Jessie Tilton!
• Close to 1 billion active Facebook users – over half log on to FB on any given day.
• 20% of all internet users use Twitter or another service to share or view updates
• Business use: Twitter up 250%, Facebook up 192% since Spring 2009
• No fad—a fundamental shift in communication
The Power of Social Media
• Find your niche and focus on that area
• Don’t sell
• Don’t over-post
• The more positive you are, the more people will want to do business with you
• Be careful who you add as your friend
• Use common sense
Social Media Etiquette
What You Post May Hurt You
Source: Forbes
What You Post May Hurt You
Source: Forbes
• Rule 7.02 prohibits false, misleading, or deceptive communications
– Material misrepresentations or omissions
– Guaranteeing results or creating unjustified expectations
• Rules 7.03 & 7.05 govern prohibited solicitations (including digital) and payments
• Rule 7.04 & 7.07 cover advertisements and filing requirements
And Then There Are the Advertising Rules
• Filing requirement applies when:
– electronic communication addresses the qualifications or the services of lawyer or firm
– not exempt under DR 7.07(e)
– generally available to the public
• Communicating attorney must file the communication with the ARC before or concurrently with first dissemination
Advertising Rules and Social Media
• In 2005, SCOTX expressly applied the Advertising Rules to electronic or digital communications
• Blogging took root shortly thereafter, followed by Facebook, Twitter, and others
• No one knew for sure how the ARs would apply to social media
• Issue has reached new importance, since new statute treats violation of ARs as barratry
Evolution of Ethical Concerns
• In 2010, the Advertising Review Committee
released revised Interpretive Comment 17
• Purpose was to address issues with
different kinds of Internet-based
advertisements, including blogs, social
media, and web-based display ads
The ARC’s Take: New Comment 17
• Focus is whether they are advertisements
subject to filing requirements, but helps
guide behavior on social media for all
purposes
The ARC’s Take: New Comment 17
“Blogs or status updates considered to be
educational or informational in nature are
not required to be filed with the Advertising
Review Department. However, attorneys
should be careful to ensure that such
postings to not meet the definition of an
advertisement subject to the filing
requirements.”
IC 17 on Blogs and Status Updates
“Landing pages such as those on
Facebook, Twitter, LinkedIn, etc. where the
landing page is generally available to the
public are advertisements. Where access
is limited to existing clients and personal
friends, filing with the Advertising Review
Department is not required.”
IC 17 on Landing Pages
• Electronic communications like social
media posts are advertisements in the
public media subject to the filing
requirements of DR 7.07 unless exempt
• Relatively New Pitfall: Tex. Gov’t Code
§ 82.0651 provides that solicitation conduct
violating disciplinary rules constitutes
barratry
What Does This Mean?
• Violate the DRs in social media = exposing
oneself to barratry under new statute
• Fee forfeiture, damages, and monetary
penalty are among remedies available—
and they are not limited to actual clients
What Does This Mean?
• Exercise caution about providing information beyond what is exempt under DR 7.07(e)– “Tombstone” information
– Areas of practice
– Dates of admission
– Technical and professional licenses
– Foreign language ability
– Prepaid group legal service plans
– Acceptance of credit cards
– Initial consultation fee or fee schedule
– Sponsorship of charitable, civic, or community program or event or PSA
• None of this needs to go before Ad Review
Where Is the Line?
• But the ARC says filing is not required for
blogs or status updates that are merely
educational or informative in nature
• The most common types of legal-related blog
and social-media posts do not trigger filing
requirements or related rules, as long as the
content would not otherwise be considered an
advertisement and is not false or misleading
• Again, exercising good judgment is key
Where Is the Line?
• “Just published an article on wage and hour breaks. Let me know if you would like a copy”
Merely states information about an article the author published. This is OK.
• “Case finally over. Unanimous verdict! Celebrating tonight.”
Factual, so probably OK.
What’s Wrong with These Updates?
• “Another great victory in court today! My client is delighted. Who wants to be next?”
“My client is delighted” could be a client testimonial.
“Who wants to be next” is not exempt and arguably solicits the lawyer’s services.
What’s Wrong with These Updates?
• “Won a million dollar verdict. Tell your friends to check out my website.”
Construed together, this could be read as soliciting employment.
• “Won another personal injury case. Call me for a free consultation.”
Offer for free consultation may be read as soliciting employment.
What’s Wrong with These Updates?
• DR 7.03(a)
violations?
Not unethical. Good marketing, until she says “hire me.”
Could be breaching
confidentiality?