Kevin W. Brown, M.B.A. recently attended a Bar CLE course on the new State Bar Rules of Professional Conduct, “Avoiding a State Bar Complaint: Review of Some Key Rules of Professional Conduct.” There are a number of changes that attorneys have noted with the new rules – and of particular interest to The Specialists in Law Firm Marketing are “Rule 7.1 Communications Concerning a Lawyer’s Services,” “Rule 7.2 Advertising” and “Rule 7.3 Solicitation of Clients.” These are all under “Chapter 7, Information About Legal Services.” Previously, under the old rules, Rule 1-400 addressed “Advertising and Solicitation.”
Of course, The Specialists in Law Firm Marketing are not lawyers and we aren’t interpreting the law, only trying to understand it from attorneys so that we can do the best job possible in marketing our clients. There are a number of sections in Chapter 7 that are very important in marketing law firms, most of which don’t seem to be much different than in the past but appear to be aimed at clarifying questionable items. Here are a few areas that we find interesting:
The old rules had lengthy sections dealing with definitions and standards for “communication” and combined the term “solicitation,” which were confusing to many in terms of application. The new rule 7.1 should be read by any person involved in marketing a law firm.
For example, “A communication that truthfully reports a lawyer’s achievements on behalf of clients or former clients, or a testimonial about or endorsement of the lawyer, may be misleading if presented so as to lead a reasonable* person* to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.”
A non-lawyer drafting such content for marketing materials should be made aware of these standards, and the final draft should be carefully reviewed by an attorney at the firm. This can be a particularly important issue when hiring a website development firm or ad agency to write content that will be read by the public, especially if that firm does not specialize in marketing lawyers.
The old rules were written prior to the internet, which caused some questions on interpretation over time. The new rules simply state “Subject to the requirements of rules 7.1 and 7.3, a lawyer may advertise services through any written,* recorded or electronic means of communication, including public media.” Of course, there is more to it than just this statement, so be certain to understand all standards relating to advertising.
Selling (solicitation) by Non-Lawyers
At the presentation, it was discussed how it has become more common for some California law firms to employ non-lawyers to solicit business. Under the old rules, it was often interpreted that this was not allowed (i.e., an attorney cannot pay a non-attorney to bring in legal work). In particular, this section from the Business and Professions code defines “A runner or capper is any person, firm, association or corporation acting for consideration in any manner or in any capacity as an agent for an attorney at law or law firm, whether the attorney or any member of the law firm is admitted in California or any other jurisdiction, in the solicitation or procurement of business for the attorney at law or law firm as provided in this article.”
In a presentation by Judge Ellen R. Peck to the OCBA in 2011, she pointed out the criminal liability for in-person solicitation of potential clients for lawyers “in and about the state prisons, county jails, city jails, city prisons, or other places of detention of persons, city receiving hospitals, city and county receiving hospitals, county hospitals, superior courts, or in any public institution
or in any public place or upon any public street or highway or in and about private hospitals, sanitariums or in and about any private institution or upon private property of any character whatsoever.”
Under the new rules, rule 7.2(b)(1) permits a lawyer to compensate employees, agents, and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff, and website designers. See rule 5.3 for the duties of lawyers and law firms* (“A lawyer must give such assistants appropriate instruction and supervision concerning all ethical aspects of their employment”) with respect to supervising the conduct of non-lawyers who prepare marketing materials and provide client development services. This section, combined with rule 7.3, regulates how business development staff can operate — in particular, they are not allowed “in-person, live telephone or real-time electronic contact” with non-clients unless the lawyer “has a family, close personal, or prior professional relationship.” This would eliminate cold-calling on prospective clients (without the prior professional relationship), since the non-lawyer must comply with the same ethical standards as the lawyer.
In our discussions with the State Bar Ethics Hotline, it is clear that these rule modifications were made to eliminate excuses by lawyers that “my staff or vendor did it and I didn’t know about it.” Bottom-line, the lawyer is responsible for compliance with the State Bar Rules of Professional Conduct.
Seek Expert Advice
Instead of hiring and training a marketing agency on how to market lawyers, why not engage The Specialists in Law Firm Marketing? We offer virtually every marketing service that your firm might need. Our reputation is based upon delivering high-quality services with expertise, courtesy and professionalism. Contact us for an appointment to discuss your needs.