WORLD CONFERENCE OF BAR LEADERS FRIDAY, SEPTEMBER 12, 2014

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1 THE BUSINESS OF LAW-- ADVERTISING AND PUBLICITY WORLD CONFERENCE OF BAR LEADERS FRIDAY, SEPTEMBER 12, 2014

2 THE SYSTEM OF REGULATION 50 states, 50 sets of rules In all but California, conduct rules, which include advertising regulations, are based on the Model Rules of Professional Conduct promulgated by the American Bar Association (ABA).

3 ENFORCEMENT MODELS: Lawyers controlled by the Supreme Court either through: Mandatory bar association membership Directly by the Supreme Court (voluntary bar associations that do not have regulatory authority) Pennsylvania--Disciplinary Board of the Supreme Court of Pennsylvania

4 LAWYER ADVERTISING IS A UNITED STATES CONSTITUTIONAL ISSUE Commercial free speech protected under 1st Amendment Standard is "in between" unfettered political free speech and misleading, misrepresenting,, lying or offering to do something illegal 1. Advertising can't be completely prohibited 2. Reasonable restrictions are permitted (state by state basis)

5 IMPORTANT CASES 1977 THROUGH Bates v. Arizona State Bar Holding: Blanket ban on advertising routine legal services unconstitutional In re Primus Holding: : Mail solicitation of potential clients by ACLU attorney seeking to fight mandatory sterilization statute is permitted. Conduct is politically protected free speech Ohralik v. Ohio State Bar Association Holding: In person solicitation of accident victims is not allowed (in Model Code, prohibited in all states, court reaffirmed in 1993 in another case )

6 IMPORTANT CASES 1977 THROUGH In re R.M.J. (Missouri ) Holding: : Attorneys are allowed to include truthful statements about themselves in advertisements Zauderer v. Office of Disciplinary Counsel (Ohio) Holding: : Advertisement may contain an illustration; contingent fee advertisements must state if client pays for costs of suit Shapero v. Kentucky Bar Association Holding: Targeted (i.e. to those known to be in need of legal help) direct mail solicitation is permissible, but it is advertising and must comply with state advertising rules.

7 IMPORTANT CASES 1977 THROUGH Peel v. Illinois Registration and Disciplinary Commission Holding: Attorney who is certified as a specialist can place this on letterhead. (Note: Letterhead considered advertising) Florida Bar v. Went for It, Inc. Holding: Thirty day waiting period on targeted mail solicitation of accident victims and their families is permissible balancing between right of privacy of victims and right of free speech.

8 PERMISSIBLE RESTRICTIONS APPLY (STATES DIFFER) Labeling something as "Legal Advertising" Record keeping (period of time; responsible lawyer) Nothing false, fraudulent or misleading (third category even if true- contextual rule) No in person or telephone solicitation Law firm websites and content are considered advertising and are subject to regulation Restrictions on electronic media--texting (sometimes), chat rooms (disagreement), but content still must be truthful and not misleading Pre-approval by state bar agency

9 Marketing and Publicity--Different than Advertising? Sometimes yes, sometimes no Advertising that is used to "brand" a firm For example, a lion, traditional symbol of power and strength Publicity A law firm gets involved in community service and the firm marketing department arranges for a story to appear in the newspaper about it A large national law firm through its public relations department arranges for a cover story and interview by a national business magazine of the law firm's managing partner Education Conducting educational seminars, either at a law firm or at a different location. Current clients and potential clients invited. Social Media Use of LinkedIn and Facebook Pay per click advertising Groupon/Deal of the Day (split) AND THEN FINALLY...

10 THE YELLOW PAGES

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16 APPENDIX Links for Lawyer Advertisements--Both Good and Bad q=lawyer+ad+images&tbm=isch&tbo=u&source=univ&sa=x&ei=de_zu8rzd 8KMyAT694CQBg&ved=0CD0Q7Ak&biw=1536&bih=731

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