1 What Every Lawyers Needs to know about the New FL Bar Advertising Rules in an hour? Michael J Faehner, Esq M Faehner Esq. LLC Immediate Past Chair and Present Vice Chair FL Bar Standing Committee on Advertising (727) Tel
2 Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) In 1977, the landmark case of Bates v. State Bar of Arizona upset decades of ethics rules prohibiting lawyer advertising. Until Bates, most forms of lawyer advertising were prohibited. The Court held that lawyer advertising like other forms of commercial speech was protected, and states could prohibit advertisements only in limited ways.
4 Bates In holding that advertising by attorneys may not be subject to blanket suppression... we, of course, do not hold that advertising attorneys may not be regulated in any way. We mention some of the clearly permissible limitations on advertising not foreclosed by our holding. Advertising that is false, deceptive, or misleading of course is subject to restraint.... advertising claims as to the quality of services, a matter we do not address today, are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction.
5 Advertising that can be prohibited altogether: Face to face solicitation that has not been invited by the prospective client; Statements that contain facts that are objectively inaccurate; Promise of results; and Subjective statements of quality of representation or subjective statements of ability.
6 Advertising that can be regulated, but not prohibited: Potentially Misleading Statements Statements that fail to include material information necessary to avoid risk of misunderstanding; Statements that contain material facts that are not objectively verifiable; and Statements that are over inclusive. Electronic advertising that can unduly influence a consumer to hire a lawyer. Modes of solicitation that unreasonably invade the personal rights of a recipient. (E.g., direct mail solicitation within 30 days of injury or death).
7 Forms of permissible regulation Time place or manner restrictions that leave ample opportunity for communicating the availability of legal services within a reasonable period of time. Disclaimers that are not overly burdensome. Prior review of advertisements by a regulatory body.
8 Short Bar Advertising Rules Timeline 1987 Florida Supreme Court implements Florida Rules of Professional Conduct 1999 SC implements former Bar Rule (websites etc.) 2004 Appointment Bar Advertising Task Force to review all advertising rules and recommend revisions 2006 SC adopts some Bar proposed changes to advertising rules but makes no changes to Rule and requests further study 2008 Bar files SC petition with proposed changes to Rule 4 7.6
9 Short Bar Advertising Rules Timeline February 2009 SC rejects Bar s proposed changes with suggestions for regulation November 19, 2009 SC makes substantive changes to Rule to become effective 1/1/10 December 2009 BOG approves 6 month moratorium June 2010 SC stays effective date of implementation of any Bar advertising rule amendments until 90 days after the Court issues opinion implementing new rules. May 2011 Bar Board of Governors reviews and approves comprehensive advertising rule amendments July 2011 Bar files comprehensive advertising rule SC amendments with
10 Short Bar Advertising Rules Timeline January 31, 2013 We have white smoke from Tallahassee and we have NEW ADVERTISING RULES In re: Amendments to the Rules Regulating The Florida Bar Subchapter 4 7, Lawyer Advertising Rules, 38 Fla. L. Weekly S47 (Fla. Jan. 31, 2013). Numbering of RULES completely changes for the purpose of not confusing old rules and new Rules. The rules have been completely reorganized and renumbered, starting at Rule and going through Rules through will be vacant The Supreme Court of Florida has issued new advertising rules, which will be effective at 12:01 a.m. on May 1, May 1, 2013 NEW RULES BECOME EFFECTIVE!!!
11 So what are the Simple Stuff in the new Rules? Application of the Rules Direct Contact with Clients Payment for Advertising and Promotion Firm Name and Letterhead Filing Requirements Exemptions from Filing and Review Lawyer Referral Services & Lawyer Directories
12 Application of the Rules (a) Type of Media. Unless otherwise indicated, this subchapter applies to all forms of communication in any print or electronic forum, including but not limited to newspapers, magazines, brochures, flyers, television, radio, direct mail, electronic mail, and Internet, including banners, popups, websites, social networking, and video sharing media. The terms "advertising" and "advertisement as used in chapter 4 7 refer to all forms of communication seeking legal employment, both written and spoken. All ad rules apply to websites and social networking and video sharing sites in addition to other media such as print, television and radio Rule (a) Websites will remain exempt from the filing requirement Rule (g)
13 Comment on websites Websites are subject to the general lawyer advertising requirements in this subchapter and are treated the same as other advertising media. Websites of multistate firms present specific regulatory concerns. Subchapter 4 7 applies to portions of a multistate firm that directly relate to the provision of legal services by a member of the firm who is a member of The Florida Bar.
14 Safe Harbor for Websites When a website violation is found, lawyer would be notified and given an opportunity to correct the website before any disciplinary action is commenced. Bar will not do a prior review of an entire website even if submitted voluntarily but will review individual pages, illustrations etc. if submitted for review. This safe harbor DOES NOT apply to False, Deceptive of Misleading Information!!!
15 Direct Contact with Clients What is Solicitation? (a) Solicitation. Except as provided in subdivision (b) of this rule, a lawyer may not: ( 1) solicit, or permit employees or agents of the lawyer to solicit on the lawyer's behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules through of these rules. (2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.
16 Direct Mail and Now Direct to Prospective Clients Every page or panel of a direct mail advertisement and its envelope must include a prominent Advertisement in ink that contrasts with both the background and other text Rule (b)(2)(B) Note no more Red Ink the key is that it contrasts Don t try to hide behind your designer Direct advertisements must begin the subject line with the word Advertisement Rule (b)(2)(B)
17 Qualifications in direct Direct ads, in addition to other direct mail ads, must include a statement of qualifications and experience Rule (b)(2)(C) Dealing with direct mail or direct (C) Every written communication must be accompanied by a written statement detailing the background, training and experience of the lawyer or law firm. This statement must include information about the specific experience of the advertising lawyer or law firm in the area or areas of law for which professional employment is sought. Every written communication disseminated by a lawyer referral service must be accompanied by a written statement detailing the background, training, and experience of each lawyer to whom the recipient may be referred.
18 Prior Professional Relationship Commentary Persons with whom the lawyer has a prior professional relationship are exempted from the general prohibition against direct, in person solicitation. A prior professional relationship requires that the lawyer personally had a direct and continuing relationship with the person in the lawyer's capacity as a professional.
19 Filing Requirements All advertisements must be filed at least 20 days in advance of their planned use, unless they are exempt Rule (a) Note great easy resources and forms on the FL Bar Website Under the Advertising Section of Lawyer Regulation
20 Worried about a Website (d) Opinions on Exempt Advertisements. A lawyer may obtain an advisory opinion concerning the compliance of an existing or contemplated advertisement intended to be used by the lawyer seeking the advisory opinion that is not required to be filed for review by submitting the material and fee specified in subdivision (h) of this rule to The Florida Bar, except that a lawyer may not file an entire website for review. Instead, a lawyer may obtain an advisory opinion concerning the compliance of a specific page, provision, statement, illustration, or photograph on a website.
21 Takedown rule for websites A lawyer will be subject to discipline as provided in these rules for: (f)(5) dissemination of portions of a lawyer's Internet website(s) that are not in compliance with rules and only after 15 days have elapsed since the date of The Florida Bar's notice of noncompliance sent to the lawyer's official bar address.
22 Exemptions from Filing and Review HUGE PRACTICE NOTE Websites will remain exempt from the filing requirement Rule (g) Look at exemptions (a) (g) before you file you may not have to lot more exempt than you think!!!
23 Payment for Advertising and Promotion Nonlawyers may not pay for a lawyer s ads Rule (c) (b) Payment for Referrals. A lawyer may not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising permitted by these rules, may pay the usual charges of a lawyer referral service, lawyer directory or other legal service organization, and may purchase a law practice in accordance with rule (c) Payment by Nonlawyers. A lawyer may not permit a nonlawyer to pay all or a part of the cost of an advertisement by that lawyer
24 Firm Name and Letterhead NO CHANGES but practice note (a) False, Misleading, or Deceptive Firm Names. A lawyer may not use a firm name, letterhead, or other professional designation that violates rules through A sole practitioner may not use the term "and Associates" as part of the firm name, because it is misleading where the law firm employs no associates in violation of rule See Fla. Bar v. Fetterman, 439 So. 2d 835 (Fla. 1983). Similarly, a sole practitioner's use of "group" or "team" implies that more than one lawyer is employed in the advertised firm and is therefore misleading.
25 Lawyer Referral Services Lawyer referral service ads must contain an affirmative statement that lawyers pay the service to get referrals Rule (a)(11) NOTE FL BAR continues to study this issue and will be reviewing a new rule in the next few months. PRACTICE NOTE just because an organization tells you that they are NOT a LRS, doesn t mean that they are. Rule is being interpreted much more broadly to invoke the jurisdiction of the FL Bar An LRS may not engage in communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer.
26 Lawyer Directories New rule defines and imposes requirements for lawyers participating in lawyer directories (a) Definition of Lawyer Directory. A lawyer directory is any person, group of persons, association, organization, or entity that receives any consideration, monetary or otherwise, given in exchange for publishing a listing of lawyers together in one place, such as a common Internet address, a book or pamphlet, a section of a book or pamphlet, in which all the participating lawyers and their advertisements are provided and the viewer is not directed to a particular lawyer or lawyers. A local or voluntary bar association that lists its members on its website or in its publications is not a lawyer directory under this rule. This rule does not apply to traditional telephone directories.
27 WHERE ARE THE CLEAR LINES UNDER THE NEW RULES? Required Content Presumptively Valid Content Deceptive and Inherently Misleading Advertisements
28 Required Content The geographic disclosure of a bona fide office may be by county instead of or in addition to city or town Rule (a)(2) The name of the law firm can be used in the advertisement in addition to or instead of the name of the lawyer responsible for the content Rule (a)(1)
29 4 7.12(a)Required Content (a) Name and Office Location. All advertisements for legal employment must include: (1) the name of at least 1 lawyer, the law firm, the lawyer referral service if the advertisement is for the lawyer referral service, or the lawyer directory if the advertisement is for the lawyer directory, responsible for the content of the advertisement; and (2) the city, town, or county of 1 or more bona fide office locations of the lawyer who will perform the services advertised. PRACTICE NOTE (b) Referrals. If the case or matter will be referred to another lawyer or law firm, the advertisement must include a statement to such effect.
30 Presumptively Valid Content New Rules have two minor changes adding presumptive valid content. They are underlined. The presumptively valid content creates a safe harbor for lawyers. A lawyer desiring a safe harbor from discipline may choose to limit the content of an advertisement to the information listed in this rule and, if the information is true, the advertisement complies with these rules. However, a lawyer is not required to limit the information in an advertisement to the presumptively valid content, as long as all information in the advertisement complies with these rules.
31 The following information in advertisements is presumed not to violate the provisions of rules through : the name of the lawyer or law firm subject to the requirements of this rule and rule , a listing of lawyers associated with the firm, office locations and parking arrangements, disability accommodations, telephone numbers, website addresses, and electronic mail addresses, office and telephone service hours, and a designation such as "attorney" or "law firm"; date of admission to The Florida Bar and any other bars, current membership or positions held in The Florida Bar or its sections or committees or those of other state bars, former membership or positions held in The Florida Bar or its sections or committees with dates of membership or those of other state bars, former positions of employment held in the legal profession with dates the positions were held, years of experience practicing law, number of lawyers in the advertising law firm, and a listing of federal courts and jurisdictions other than Florida where the lawyer is licensed to practice;
32 You can use all of this. technical and professional licenses granted by the state or other recognized licensing authorities and educational degrees received, including dates and institutions; military service, including branch and dates of service; foreign language ability; fields of law in which the lawyer practices, including official certification logos, subject to the requirements of subdivision (a)( 4) of rule regarding use of terms such as ce1tified, specialist, and expert; prepaid or group legal service plans in which the lawyer participates; acceptance of credit cards; fee for initial consultation and fee schedule, subject to the requirements of subdivisions (a)(5) of rule regarding cost disclosures and honoring advertised fees; common salutary language such as "best wishes," "good luck, "happy holidays," "pleased to announce," or ''proudly serving your community"; punctuation marks and common typographical marks;
33 And who could forget these illustration of the scales of justice not deceptively similar to official certification logos or The Florida Bar logo, a gavel, traditional renditions of Lady Justice, the Statue of Liberty, the American flag, the American eagle, the State of Florida flag, an unadorned set of law books the inside or outside of a courthouse column(s), diploma(s), or a photograph of the lawyer or lawyers who are members of, or employed by, the firm against a plain background such as a plain unadorned office or a plain unadorned set of law books
34 Deceptive and Inherently Misleading Advertisements Highlights of the Rule: Changes lessening restrictions Ads may now contain: objectively verifiable past results Rule (b)(2) objectively verifiable characterizations of skill, experience, reputation or record Rule (b)(3) testimonials, subject to specific restrictions and disclaimers Rule (b)(8)
35 Here is the standard. A lawyer may not engage in deceptive or inherently misleading advertising. (a) Deceptive and Inherently Misleading Advertisements. An advertisement is deceptive or inherently misleading if it: (1) contains a material statement that is factually or legally inaccurate; (2) omits information that is necessary to prevent the information supplied from being misleading; or (3) implies the existence of a material nonexistent fact.
36 Examples of Deceptive and Inherently Misleading Advertisements. (b)(1) statements or information that can reasonably be interpreted by a prospective client as a prediction or guaranty of success or specific results (b)(2) references to past results unless such information is objectively verifiable, subject to rule Practice Note Rule 4 1.6(a), Rules Regulating the Florida Bar, prohibits a lawyer from voluntarily disclosing any information regarding a representation without a client's informed consent, unless one of the exceptions to rule applies. A lawyer who wishes to advertise information about past results must have the affected client's informed consent. The fact that some or all of the information a lawyer may wish to advertise is in the public record does not obviate the need for the client's informed consent.
37 Past Results The prohibitions in subdivisions (b)( l) and (b)(2) of this rule preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, if the results are not objectively verifiable or are misleading, either alone or in the context in which they are used. For example, an advertised result that is atypical of persons under similar circumstances is likely to be misleading. A result that omits pertinent information, such as failing to disclose that a specific judgment was uncontested or obtained by default, or failing to disclose that the judgment is far short of the client's actual damages, is also misleading. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances.
38 Past results keep coming An example of a past result that can be objectively verified is that a lawyer has obtained acquittals in all charges in 4 criminal defense cases On the other hand, general statements such as, "I have successfully represented clients," or "I have won numerous appellate cases," may or may not be sufficiently objectively verifiable. For example, a lawyer may interpret the words "successful" or "won" in a manner different from the average prospective client. In a criminal law context, the lawyer may interpret the word "successful" to mean a conviction to a lesser charge or a lower sentence than recommended by the prosecutor, while the average prospective client likely would interpret the words "successful" or "won" to mean an acquittal.
39 Examples of Deceptive and Inherently Misleading Advertisements. (b)(3) comparisons of lawyers or statements, words or phrases that characterize a lawyer's or law firm's skills, experience, reputation or record, unless such characterization is objectively verifiable (b)(4) references to areas of practice in which the lawyer or law firm does not practice or intend to practice at the time of the advertisement Practice Note The prohibition against comparisons that cannot be factually substantiated would preclude a lawyer from representing that the lawyer or the lawyer's law firm is "the best," or "one of the best," in a field of law. On the other hand, statements that the law firm is the largest in a specified geographic area, or is the only firm in a specified geographic area that devotes its services to a particular field of practice are permissible if they are true, because they are comparisons capable of being factually substantiated.
40 Examples of Deceptive and Inherently Misleading Advertisements. (b)(5) a voice or image that creates the erroneous impression that the person speaking or shown is the advertising lawyer or a lawyer or employee of the advertising firm. The following notice, prominently displayed would resolve the erroneous impression: "Not an employee or member of law firm" prominently displayed notice: "ACTOR. NOT ACTUAL [... ]"; (b)(6) a dramatization of an actual or fictitious event unless the dramatization contains the following prominently displayed notice: "DRAMATIZATION. NOT AN ACTUAL EVENT." When an advertisement includes an actor purporting to be engaged in a particular profession or occupation, the advertisement must include the following prominently displayed notice: "ACTOR. NOT ACTUAL [... ]";
41 Testimonials are finally here (8) a testimonial: (A) regarding matters on which the person making the testimonial is unqualified to evaluate; (B) that is not the actual experience of the person making the testimonial; (C) that is not representative of what clients of that lawyer or law firm generally experience; (D) that has been written or drafted by the lawyer; (E) in exchange for which the person making the testimonial has been given something of value; or (F) that does not include the disclaimer that the prospective client may not obtain the same or similar results ;
42 More testimonials A testimonial is a personal statement, affirmation, or endorsement by any person other than the advertising lawyer or a member of the advertising lawyer's firm regarding the quality of the lawyer's services or the results obtained through the representation. Clients as consumers are well qualified to opine on matters such as courtesy, promptness, efficiency, and professional demeanor. Testimonials by clients on these matters, as long as they are truthful and are based on the actual experience of the person giving the testimonial, are beneficial to prospective clients and are permissible.
43 Endorsements on Line Are they worth it? Do consumers react to endorsements? If they do, do they have to know the endorser? What about anonymous endorsers? What about celebrity endorsers? Isn t the best endorsement a qualified endorsement either peer to peer or former or present client to potential client more powerful?
44 Cutting Edge Endorsements Facebook LinkedIn Avvo Other networking sites
45 Is this a testimonial? Personal or a Business Page
46 Be yourself Hints on Facebook Facebook is social Soft sell approach to your centers of influence can be very powerful Nothing beats a cute kid, cute kitty cat and a good personal story or event Use Checkins effectively
47 Is this a testimonial?
48 Hints on LinkedIn It is a Professional Site rather than Personal Link your blog. LinkedIn automatically publishes each new post to your LinkedIn profile. You can also use an RSS feed to accomplish the same task. Share your slides. PowerPoint slides contains some great content; why not repurpose them for sharing on LinkedIn? Add a call to action and share. Promote your practice to a targeted audience. Your LinkedIn company page has dedicated tabs you can use to promote your practice your group members. If you have set up a group on LinkedIn, the site allows you to send one every week to all members.
49 The Florida Bar Standing Committee on Advertising Guidelines for Networking Sites Pages of individual lawyers on social networking sites that are used solely for social purposes, to maintain social contact with family and close friends, are not subject to the lawyer advertising rules. Pages appearing on networking sites that are used to promote the lawyer or law firm s practice are subject to the lawyer advertising rules.
50 Responsibility for Content Although lawyers are responsible for all content that the lawyers post on their own pages, a lawyer is not responsible for information posted on the lawyer s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules.
51 What is the Remedy? If a third party posts information on the lawyer s page about the lawyer s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer s page. If the lawyer becomes aware that a third party has posted information about the lawyer s services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non complying information. In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyer s request.
52 Bottom Line Networking sites for endorsements are the functional equivalent of your website Be Careful and decide if its worth the potential headaches Also, don t assume that clients or other people will post good things about you.
53 Examples of Deceptive and Inherently Misleading Advertisements. (b)(7) statements, trade names, telephone numbers, Internet addresses, images, sounds, videos or dramatizations that state or imply that the lawyer will engage in conduct or tactics that are prohibited by the Rules of Professional Conduct or any law or court rule; (9) a statement or implication that The Florida Bar has approved an advertisement or a lawyer, except a statement that the lawyer is licensed to practice in Florida or has been certified pursuant to chapter 6, Rules Regulating the Florida Bar; or (b)(10) a judicial, executive, or legislative branch title, unless accompanied by clear modifiers and placed subsequent to the person's name, in reference to a current, former or retired judicial, executive, or legislative branch official currently engaged in the practice of law. For example, a former judge may not state "Judge Doe (retired)" or "Judge Doe, former circuit judge." She may state "Jane Doe, Florida Bar member, former circuit judge" or "Jane Doe, retired circuit judge..."
54 Where is the Grey Area Under the New Rules Potentially Misleading Advertisements Unduly Manipulative or Intrusive Advertisements
55 4 7.14Potentially Misleading Advertisements A lawyer may not engage in potentially misleading advertising. (a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to: (1) advertisements that are subject to varying reasonable interpretations, 1 or more of which would be materially misleading when considered in the relevant context; (2) advertisements that are literally accurate, but could reasonably mislead a prospective client regarding a material fact;
56 Potentially Misleading Advertisements (3) references to a lawyer's membership in, or recognition by, an entity that purports to base such membership or recognition on a lawyer's ability or skill, unless the entity conferring such membership or recognition is generally recognized within the legal profession as being a bona fide organization that makes its selections based upon objective and uniformly applied criteria, and that includes among its members or those recognized a reasonable crosssection of the legal community the entity purports to cover Statements that lawyer is AV rating by Martindale Hubbell and recognition as Super Lawyer are allowed. The ad must include the EXACT name of the Organization and the Award, the date of the award unless the award is in the same year the ad is running. The Organization must use a legitimate selection criteria for the award
57 Potentially Misleading Advertisements ( 4) a statement that a lawyer is board certified, a specialist, an expert, or other variations of those terms unless: (A) the lawyer has been certified under the Florida Certification Plan as set forth in chapter 6, Rules Regulating the Florida Bar and the advertisement includes the area of certification and that The Florida Bar is the certifying organization; (B) the lawyer has been certified by an organization whose specialty certification program has been accredited by the American Bar Association or The Florida Bar as provided elsewhere in these rules. A lawyer certified by a specialty certification program accredited by the American Bar Association but not The Florida Bar must include the statement "Not Certified as a Specialist by The Florida Bar" in reference to the specialization or certification. All such advertisements must include the area of certification and the name of the certifying organization; or (C) the lawyer has been certified by another state bar if the state bar program grants certification on the basis of standards reasonably comparable to the standards of the Florida Certification Plan set forth in Chapter 6 of these rules and the advertisement includes the area of certification and the name of the certifying organization. In the absence of such certification, a lawyer may communicate the fact that the lawyer limits his or her practice to 1 or more fields of law
58 Potentially Misleading Advertisements (5) information about the lawyer's fee, including those that indicate no fee will be charged in the absence of a recovery, unless the advertisement discloses all fees and expenses for which the client might be liable and any other material information relating to the fee. A lawyer who advertises a specific fee or range of fees for a particular service must honor the advertised fee or range of fees for at least 90 days unless the advertisement specifies a shorter period; provided that, for advertisements in the yellow pages of telephone directories or other media not published more frequently than annually, the advertised fee or range of fees must be honored for no less than 1 year following publication. (b) Clarifying Information. A lawyer may use an advertisement that would otherwise be potentially misleading if the advertisement contains information or statements that adequately clarify the potentially misleading issue.
59 Unduly Manipulative or Intrusive Advertisements Highlights of the New Rule: Unduly manipulative techniques are prohibited, including appeals to emotions rather than rational evaluation of lawyer qualifications Rule (a) Ads may not use authority figures, or actors portraying authority figures, to endorse, recommend, or act as a spokesperson for, the advertising lawyer Rule (b) Lawyers may not offer economic incentives to view an ad or hire a lawyer, except for a discounted fee Rule (d)
60 Unduly Manipulative or Intrusive Advertisements A lawyer may not engage in unduly manipulative or intrusive advertisements. An advertisement is unduly manipulative if it: (a) uses an image, sound, video or dramatization in a manner that is designed to solicit legal employment by appealing to a prospective client's emotions rather than to a rational evaluation of a lawyer's suitability to represent the prospective client;
61 Let s appeal to your EMOTIONS Illustrations that are informational and not misleading are permissible. As examples, a graphic rendering of the scales of justice to indicate that the advertising lawyer practices law, a picture of the lawyer, or a map of the office location are permissible illustrations. An illustration that provides specific information that is directly related to a particular type of legal claim is permissible. For example, a photograph of an actual medication to illustrate that the medication has been linked to adverse side effects is permissible. An x ray of a lung that has been damaged by asbestos is permissible. A picture or video that illustrates the nature of a particular claim or practice, such as a person on crutches or in jail, is permissible.
62 All of these are permissible: A car that has been in an accident to indicate that the lawyer handles car accident cases. A construction site to show either that the lawyer handles construction law matters or workers' compensation matters. A house with a foreclosure sale sign to indicate that the lawyer handles foreclosure matters. A person with a stack of bills to indicate that the lawyer handles bankruptcy A person being arrested, a person in jail, or an accurate rendering of a traffic stop A bulldozer to indicate that the lawyer handles eminent domain matters.
63 All of these are permissible: Illustrations, photographs, or scenes of doctors examining x rays are permissible to show that a lawyer handles medical malpractice or medical products liability cases. An image, dramatization, or sound of a car accident actually occurring would also be permissible, as long as it is not unduly manipulative. Some illustrations are used to seek attention so that viewers will receive the advertiser's message. So long as those illustrations, images, or dramatizations are not unduly manipulative, they are permissible, even if they do not directly relate to the selection of a particular lawyer.
64 All of these are NOT permissible: Although some illustrations are permissible, an advertisement that contains an image, sound or dramatization that is unduly manipulative is not. A car accident occurring in which graphic injuries are displayed A depiction of a child being taken from a crying mother because it seeks to evoke an emotional response and is unrelated to conveying useful information An insurance adjuster persuading an accident victim to sign a settlement because it is likely to convince a viewer to hire the advertiser solely on the basis of the manipulative advertisement.
65 Unduly Manipulative or Intrusive Advertisements An advertisement is unduly manipulative if it: (b) uses an authority figure such as a judge or law enforcement officer, or an actor portraying an authority figure, to endorse or recommend the lawyer or act as a spokesperson for the lawyer; (c) contains the voice or image of a celebrity, except that a lawyer may use the voice or image of a local announcer, disc jockey or radio personality who regularly records advertisements so long as the person recording the announcement does not endorse or offer a testimonial on behalf of the advertising lawyer or law firm; or
66 Unduly Manipulative or Intrusive Advertisements An advertisement is unduly manipulative if it: (d) offers consumers an economic incentive to employ the lawyer or review the lawyer's advertising; provided that this rule does not prohibit a lawyer from offering a discounted fee or special fee or cost structure as otherwise permitted by these rules and does not prohibit the lawyer from offering free legal advice or information that might indirectly benefit a consumer economically.
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