By Van Hardenbergh
Nowadays our televisions scream at us with legal ads from personal injury and divorce lawyers, and everyone in between. Drive any highway and you will see the smiling faces of lawyers gazing down from billboards. We have thrown off the heavy chains of censorship and embraced the right of free speech related to our marketing . . . sort of. Our right to communicate helpful information to prospective clients is stronger than ever, but we still face restrictions.
Rule 7.1(a)—False or Misleading Statements
The starting point for any discussion about the ethical use of direct mail for lawyers is Rule 7.1—Communications Concerning A Lawyer’s Services. This rule begins by specifying that a lawyer “shall not make a false or misleading communication about the lawyer or the lawyer’s services.” When drafting a direct mail letter to prospective clients, you should be very careful to ensure that all statements you make are accurate and not misleading.
Many attorneys have gotten into trouble for making false statements in their ads. In 2010, the Las Vegas-Review Journal reported that the Nevada Supreme Court reprimanded attorney Anthony “Tony the Tiger” Lopez Jr. because of misleading radio advertisements. His 10-second spot ran on two Nevada stations and told listeners, “If you have had an auto accident, by law you have the right to receive at least $15,000 for your case.” As the Court pointed out, “ ‘. . . the advertisement misled the public into believing that they had a right to $15,000 if they were involved in a car accident regardless of the merits of their case.’ ” (http://www.reviewjournal.com/news/court‐reprimands‐lawyer‐overmisleadingads)
Photos can be deemed misleading as well, as one attorney in California recently learned. Svitlana Sangary was suspended after adding her image to photos with Barack Obama, Bill Clinton, and George Clooney (among others). Judge Donald F. Miles found that posting these images on her website when she had in fact not been photographed with these public figures “communicated an advertisement or solicitation directed to the general public that was false and deceptive.”
Rule 7.1(b)—Cumulative Case Results
The first section of this rule dictates how attorneys can communicate the results of previous cases. It states, “A communication violates this rule if it advertises specific or cumulative case results, without a disclaimer that (i) puts the case results in a context that is not misleading; (ii) states that case results depend upon a variety of factors unique to each case; and (iii) further states that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.”
The Committee commentary on the rule provides some insight as to why this rule has been imposed on attorneys. In a nutshell it states that a person might reasonably expect you to achieve the same results for him, regardless of the facts or merits of the individual’s case. This “unjustified expectation” is misleading.
The takeaway is that you must present information to potential clients in such a way as to avoid misleading them. For example, citing “winning percentages” in your direct mail
can be useful, but are you misleading the public? For example, a lawyer could take only one case, win it, and forever claim to have a perfect record. Another may take a dozen cases that are surefire winners and claim the same perfect record. Not surprisingly, some lawyers define a “win” as any case in which they get paid, regardless of the outcome.
Not only are the words important, the typeface and placement of the case-results disclaimer is important as well. The rule states, “The disclaimer shall precede the communication of the case results. When the communication is in writing, the disclaimer shall be in bold typeface and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results.”
These requirements can put a significant damper on your ability to use a winning percentage as a lead in advertising. For example, a headline should be the first thing seen in any
ad, and it should be larger than the rest of the text in order to capture the reader’s attention. Obviously, putting a disclaimer before the headline in the same large font would ruin the effect. The font size and color requirements are intended to deter clever lawyers who would try to hide or camouflage the disclaimer.
If you have any questions about the ethical rules of direct mail, feel free contact Van Hardenbergh at van@vandefense.com.