Didn’t make it to the early-morning ethics presentation by Advertising Review Director, Gene Major, at the recent State Bar of Texas 2016 Annual Meeting in Fort Worth? Here is a recap of highlights of things to remember regarding the Texas Bar Advertising Rules.
The overarching theme for the rules and for the Advertising Review board is that you:
avoid promoting false or misleading statements and activities.
(Advertising rules are covered in section 7 of the Texas Disciplinary Rules of Professional Conduct, and Rule 7.02 is a go-to source as a reminder of the basics for communications.)
Major kicked off his presentation with several video examples, including one from attorney Bryan E. Wilson. Like him or hate him – “The Texas Law Hawk” is doing well within the Bar Rules, according to Major. That means, the information is compliant and the Hawk (Wilson) has embraced technology to reach a particular niche. Major noted, “One thing that our rules are designed to do is to incorporate technology, to embrace technology…provided you follow the rules.” We are fortunate to be in Texas, where the folks in Austin understand the flexibility required in applying rules to new an ever-changing technology. The approach I have observed from the Advertising Review office over the years, and especially since the advent of online media, is reasonable and thoughtful.
NAMES: By immediate example above with the “Texas Law Hawk,” Texas permits the use of nicknames. A trade name, however, is prohibited as the name of the firm. That should already be known to you and becomes helpful when considering the current use of catchy names in firm website URLs and blogs. Major explained this way: “A descriptive URL is okay, but not as the firm name – ‘FortWorthCriminalLaw.com’ is fine, though NOT ‘BESTFortWorthCriminalLaw.com.’” (A claim of “best,” “smartest,” etc. could imply an outcome or otherwise mislead and would be prohibited by the rules. If you have a superlative claim like one of these, Major encouraged that you could submit the proposed (ad, website, blog) -- just be prepared to substantiate with objectively verifiable support.) Major also noted that the addition of “and associates” to a firm name would be against the bar rules where a (newer) attorney wants to hold out as “Smith & Assoc.” by name, yet does not have any associates.
OUTCOMES: In a television ad, you can use the net dollar amount, after everyone was paid. For example, “My attorney got me $18,275 for my truck accident.”
PUBLIC MEDIA: It’s important to know what is and is not considered public advertising. Rule 7.04 pertains to “ads in the Public Media,” what we traditionally think of when we think of print and electronic advertising. Per this rule, you must submit your advertising to Austin for review. Things that do not qualify as “Public Media” (do not require review and approval) include:
- legal papers,
- letters or materials mailed to other lawyers,
- information sent because of a request,
- information sent to clients and past clients. Thus, your annual holiday card does not require review by Austin.
BLOGS are not considered a “public media advertisement,” so long as they qualify as:
a) Educational or editorial,
b) Comment on a specific area of law or development in the law.
As Major stated, “The main goal of a blog is to have someone read how ‘wonderful’ you are, and for you gain credibility on a subject area.” He also appreciates the use of a blog as a great vehicle to build a niche in the market.
Attorneys run into trouble when they forget the general reminder at the top of this post – to avoid false and/or misleading statements and activities. For example, I mention the Virginia case, Hunter v. Virginia State Bar, in my Social Media Ethics CLE because the court ruled that the attorney Hunter’s blog was lawyer advertising because it wasn’t focused on education or editorial, but rather on self-promotion. (See also Justice Powell's opinion which mentions relevant rules and requirements considered by the court to determine if a disclaimer were required.) The Virginia Supreme Court held that advertising rules may be applied to attorney blogs and found that Hunter's blog was a form of commercial speech.
Does this mean you should hang up your keyboard never to write creatively again? Hardly. As with other modes of telling your story online and in print: avoid the false and misleading, seek to educate and inform. Major discussed the case briefly saying, “'This Week in Richmond Criminal Law' is a great name for a blog. But, the attorney (Hunter) ran 15-20 past successes from himself and his firm – not anything educational. He lost the court case, one of the rare times the Bar has won, because the blog was not educational.”
By the way, Mr. Hunter's blog now seems to follow the educational path - read it here, to see what you think.
ADVERTISEMENTS: You must list your principal office within your advertisements – though if your firm has multiple locations, you only need to include the list of locations, you do not need additional text to indicate which of those is the primary. (And, for those firms listing multiple offices in an order other than alphabetical – that only makes sense to you. For example, if your seven locations are listed in order of their debut dates, only the people at your firm recognize that order – and even some of them may not realize that’s the basis of the list. Reorganize into a list that the average consumer will understand: alphabetical.)
For situations where attorneys may have a collaborative arrangement regarding advertising, Major cautioned, “In an instance where one lawyer may have paid for an ad that another is running, both attorneys are responsible for the veracity of the ad.”
WEBSITE: Regarding home page banner art on your website, Major said: “If you have the name of your firm in the banner and you have a picture of individuals in a conference room, you have to make sure they are actual attorneys in the firm.” Photos depicting people as if they work at your firm (attorneys in a conference room), should feature real people who work at your firm, not actors or clip art and stock photos.
This will require planning, foresight when creating or updating your website. Using people from the firm is great…until they leave. Then, you’ll need to edit the photos or substitute a new photo. Anticipate this at the design stage, and use people whom you expect to be around for the long haul. (Note also: these days, websites are updated/overhauled every 2-3 years. You should anticipate this as you budget time and money for every website update.) Meanwhile, avoid visuals that depict money falling from the sky or similar because they create an unjustified expectation.
When to submit your website for review: Obviously, you would submit the original or first-generation edition of your website. For subsequent updates and website changes,
- Regular edits “in the course of business” would not trigger advertising review. (e.g. updates to attorney bios, posting a press release to your news page, a new blog post, the addition of new associates)
- Significant changes should prompt you to submit the updated site for review. (e.g. adding a new practice area, complete site re-vamp with new navigation and branding)
Major mentioned that his office sees “…a lot of creep from what was originally submitted for a website. That’s when we get our complaints.” A colleague of mine advises his firm to re-submit its website for review on an annual basis to ensure compliance. Such diligence is not necessary if you have only made general updates, though the habit might be considered a “Best Practice.”
EMAIL: Solicitations via email must include the word “advertisement” in the subject line. Rule 7.05 (f)(3) addresses the distinction made when an email is intended significantly for the objective of pecuniary gain, versus an email sent with a primary purpose of educating or informing – as with a monthly enewsletter to clients and prospects. When you email for a solicitation, you must also be sure to include a statement of how you obtained the recipient’s address/contact information.
SOCIAL: Your social media landing pages do not require submission, if the information stated there is limited to “tombstone-style” basics, as noted in rule 7.07(e). However, you would be better served to provide more information to help distinguish yourself and your services (and thus inform prospects) – so, it would be wise to submit your social landing pages. Each platform landing (home) page, (for Facebook, LinkedIn, Twitter, etc.) requires a separate submission for review.
If you have earned a technical professional license such as CPA, you may include that in your profile summary – provided the listing complies with bar rules.
Facebook: You might have a Facebook business page in addition to your personal profile. Generally speaking, your business page is intended to conduct business and is open to the public. You would be expected to submit the business landing page for review and approval. If you run your personal Facebook profile in rather private fashion, meaning the content there is not intended to be nor managed as if it is open for public consumption, then the personal profile doesn’t require submission.
COMPLAINTS/NON-COMPLIANCE: The Advertising Review Committee can request substantiation for any claim. An original submission for approval must include a fee of $100, while the penalty for failing to submit is $300. Failure to file is a breach of the Texas Disciplinary Rules of Professional Conduct (TDRPC). Major noted that the majority of complaints received by his office usually come from counsel who are trying to get their opponent kicked off the case if they can prove your advertising is non-compliant.
In summary, Major explained that the State Bar Advertising Review department strives to help identify and remove any false or misleading information. They are willing to work with you when questionable instances are found. Plus, Major was keen to encourage the various ways attorneys can market themselves today, such as with a creative, branded URL. He also likes leveraging soft testimonials from clients (Texas does not prohibit client testimonials). Keep in mind, you should avoid quid pro quo testimonials – especially as might occur via LinkedIn. I have seen a few attorneys unnecessarily skittish about networking within LinkedIn, and I remind them: network online as you would in real life. Also remember, the rules apply to all forms of media – email, audio, video, electronic, infomercials, recorded telephone messages, as well as written materials.
> For quick reference, create a Hot Link to a PDF of the Bar Rules in the navigation bar of your web browser.
> For further discussion and tips, refer to the Texas Young Lawyers Association (TYLA) Pocket Guide to social media. It is a helpful thumbnail approach to what is/not regulated and covers the basics of attorney advertising, exemptions, emails, newsletters, and more. It also has many useful tips associated with the rules.
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