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 seemed to be clear 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. However, in speaking with various attorneys, we’ve found that some have viewed this type of solicitation as limited to jails, hospitals, courts, etc., and not other sales and networking efforts in business and personal settings.
In the recent “New Bar Rules” presentation, it was pointed out that non-lawyers are not allowed to solicit business from prospective clients.
Under the new rules, per section 7.2(b): “A lawyer shall not compensate, promise or give anything of value to a person* for the purpose of recommending or securing the services of the lawyer or the lawyer’s law firm,* except that a lawyer may …” (the section goes on to detail exceptions for: “the reasonable* costs of advertisements or communications permitted by this rule”; “usual charges of a legal services plan or a qualified lawyer referral service”; “pay for a law practice”; “refer clients to another lawyer or a non-lawyer professional pursuant to an arrangement not otherwise prohibited”; and addresses a gift or gratuity to a person having made a recommendation). Per Evidence Code section 175, a “Person” includes a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.
We’ll leave it attorneys to argue whether or not this language means once-and-for-all that non-lawyers cannot solicit business, do sales work, etc., on behalf of a law firm. Certainly, some interpret it that way.
This may turn out to be a hot topic. If it is confirmed that under no circumstances are non-lawyers allowed to solicit business on behalf of a lawyer or law firm, we would expect some jobs at certain law firms to be eliminated or reconstructed to comply 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.