By Gina Eliadis, director of marketing and business development at Goodell DeVries
The ethics rules that govern the legal profession are not only for lawyers. As legal marketers, we need to adhere to those same requirements when communicating our lawyers’ services and soliciting clients. In this interview, Goodell DeVries partner Craig Brodsky explains what legal marketers in the Mid-Atlantic Region should know about the Rules of Professional Conduct.
Brodsky has more than 20 years of experience in defending lawyers in disciplinary actions resulting from allegations of professional misconduct. He provides counsel from the initial stages of a Bar Counsel investigation through the final United States Court of Appeals argument.
Which legal ethics rules should practitioners in the Mid-Atlantic Region consult for marketing lawyers and law firms?
These rules actually encourage lawyer advertising but recognize the potential for abuse and the need for limits. No matter the jurisdiction, the central theme is this: Be truthful. Do not make false statements, and do not mislead.
When can lawyers call themselves experts?
This depends on what state the lawyer practices in. Some states do allow it, but sometimes the term “expert” must be supported by some type of earned certification. A lawyer who is board-certified through the National Board of Trial Advocacy, for example, can be described as an expert. But the certification must be valid and relate to the lawyer’s practice area, too.
What are the rules on advertising lawyers as Super Lawyers, Best Lawyers, etc.?
Once again, this depends on where the lawyer practices, and not all places treat them the same. New Jersey's recently published
guidance on how to publicize is somewhat stringent, while D.C., Virginia and Maryland are not quite as much. But the overarching principle prevails: Don’t mislead. If you’ve been named the “Best Lawyer in Baltimore for Construction Ligitation,” put your advertising in context so it is not misleading. You should say which organization issued the accolade and be transparent about the criteria for selection. Be sure that your promotional materials don’t create potential confusion, particularly among members of the public, who are generally not as knowledgeable about legal services. Don’t imply that you’ve been
objectively compared to other practitioners as “the best.”
How does the rule of client confidentiality affect marketing communications?
Everything a lawyer does, including marketing, is subject to ABA Rule 1.6 (“Confidentiality of Information”). A client should never be identified, and matters should never be discussed in marketing materials without consent from the client. This holds true even if those details are available elsewhere – in the press, for example. Even if you don’t identify the client by name but cite specific details of the matter in a case summary on your website, you could inadvertently divulge sensitive information. Again, do not use any of this information without informed client consent.
Is an alert emailed directly to clients an “advertisement”?
In the broadest sense, the answer is "yes." However, the extent to which the email alert will be scrutinized depends on the content and the individuals to whom the email is sent. The more specific the advice and the more targeted the audience, the more scrutiny the publication may be under. As a best practice, always include disclaimer language to prevent any misunderstanding.
If the email includes a call to action (CTA) that encourages recipients to contact the author for more information, be sure that CTA language is consistent with the professional conduct rules of the respective jurisdiction.
Remember, regardless of the marketing initiative or communication, the guiding principle is to always be truthful and to avoid communicating in any way that could be misleading.
Thanks to Craig Brodsky for sharing his insight on this topic.