I had the pleasure to attend the 2017 State Bar of Texas Annual Meeting early morning ethics session on Advertising Rules and Social Media presented by Gene Major, Director of Advertising Review at the State Bar of Texas (SBOT). Gene opened with humorous examples of what not to do as well as examples of attorneys who promote their businesses and services in compliance with the bar rules, and in particular, Section VII of the Texas DRCP.
The Advertising Rules pertain to ALL forms of communications: audio, visual, digital/electronic, informatics, recorded phone messages, social media. My 2016 summary of Gene’s presentation can be found here, and below are additional reminders from the 2017 preso.
1. Submissions for Review -- Like him or not, the “Texas Law Hawk” Bryan E. Wilson creates videos that adhere to the guiding principle for online and other promotional content: you should strive to educate and inform. Gene noted that Bryan sends all his videos to the Advertising Review committee for approval -- prior to running them.
REMINDER: You should submit videos and other promotional advertising content for approval. Also, you should send new social media accounts, such as a new business Facebook page, as well as a new website to the Advertising Review Department. (Link to submission form.) You do not have to continually submit periodic updates made to your website, such as a new attorney’s bio or a news item. Only substantial changes such as the addition of a new practice group would require submission to Austin. The submission fee is $100; the fine for non-submission is $300, and a violation of the disciplinary rules. (As I mentioned last year, you may find it handy to add the SBOT Advertising Rules page to your browser's hotlinks.)
2. TESTIMONIALS -- Did you know? Texas permits client testimonials that could be considered “soft” testimonials such as those stating an attorney “called me back in a timely fashion,” or “treated me, my spouse well…”
3. Nicknames -- Texas permits nicknames for URLS, but not firm names. (See Alexander v CahillI, 598 F.3d)
NOTE: For inclusion in advertising in Texas, the nickname must not overpower the firm name. Gene gave an example of an attorney billboard (from outside our state) where “My Bald Lawyer” was far larger than the font size used for the firm’s name – this would be non-compliant here.
CAUTION for solos: If you are the only attorney at the firm (no other associates), then “Smith and Associates…” is non-compliant.
4. Public/Non-Public Media – SBOT Advertising Rules distinguish between ads that appear in “non-public” and “public” media. Non-public media includes legal newspapers and directories, materials mailed to other lawyers, information sent because of a request, and information sent to clients and past clients. Public media includes anything else that is intended to reach the general public, and by Rule 7.04:
- must list the geographic location of the principal office;
- must follow the Rule’s guidelines regarding contingency fees, cases to be referred, and when applicable – must indicate an ad is paid for by another attorney or group of attorneys.
5. Settlement figures – Publicity of a settlement may require inclusion of the exact amount, down to the penny. For example: a congratulatory ad in a lawyer-focused publication (non-public media) could show a round settlement amount “$72m,” while an advertisement disseminated to the public must list exact net – “$14,958.78.”
6. Blogs – In Texas, blogs are not considered a “public media advertisement” if:
- they are educational or editorial;
- they comment on a specific area of or development in law;
- the main goal is that a reader discover “how wonderful you are/gain credibility on a subject area.”
I noted this in the 2016 summary, and it is worth repeating here because Gene emphasized it again this year: “You can really establish yourself in your area of the law – if you blog.” He reminded the audience, “People don’t want to hear about your results – they want to hear about what’s going on in (particular areas of) the law.”
7. Actors / Clip-art – The use of an actor to portray an attorney, or the use of clip-art that depicts a lawyer in the graphic or illustration, may violate Rule 7.02 (7). Likewise, an image that includes clip-art or actors to depict clients would be prohibited. The goals of these guidelines are to avoid misleading information. (See also Comment 13 to 7.02, Rules 7.04(g) and 7.05(a), and Comment 12 to Rule 7.04.)
8. Notable Cases -- Here are notable cases Gene mentioned…. Alexander v. Cahill, 598 F.3d 79 (2010) (re: challenge to new rules adopted by the New York Appellate Division that prohibited certain types of attorney advertising and solicitation); Harrell v. the Florida Bar, 608 F.3d 1241 (11th Cir. 2010) (re: Harrell’s challenge to the Bar’s advertising rules for vagueness). Public Citizen, Inc. v. Louisiana Attorney Disciplinary Board, 632 F.3d 212 (2011) (re: challenge that the Louisiana RPC unconstitutionally infringed on the commercial speech of Louisiana lawyers).
Finally, I want to offer a positive reminder that Gene and his team in Austin apply a “reasonableness test to the majority of what (they) see.”
Check out the SBOT 2017 Annual Meeting storify: https://storify.com/statebaroftexas/sbot17-2017-state-bar-of-texas-annual-meeting
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