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The ABA Rules on Attorney Advertising: What You Can & Can't Do

January 8, 2019 at 11:11 AM

It should be no surprise that legal is one of the most regulated industries out there. Those hoping to market their firm need not only adhere to the rules of Facebook, Google, and other digital ad networks, but those of the American Bar Association as well -- which can vary significantly from state to state.

To make it a little easier, we’ve summarized the top hurdles our legal clients have ran into along with a few tips to make sure your ads are in compliance.

The Guide to ABA Regulation on Attorney Advertising 

But first, always check with your local ABA

While we did our best to summarize a few basic rules, each state has its own take on attorney regulation. To make sure you’re in the clear, we recommend consulting Title VII of your state’s Bar Rules of Professional Conduct.

While most states use the Model Rules with few changes, some (notably Texas, Florida, California, and New York) favor greater regulation. The Florida Bar, in particular, even has a 126-page handbook on lawyer advertising that requires law firms to submit proposed advertisements for review 20 days prior to intended use, along with a $150 filing fee for each ad variant.

If you’re working with an advertising agency, make sure they’re well versed in your state’s Bar regulation -- or at least willing to put in the work to keep you on the ABA’s good side.

 

And now, what you can’t do with attorney advertising:

While this list isn’t meant to be exhaustive, here are the top three reasons we see legal advertisements rejected or flagged --


1. Use false, misleading, or unsubstantiated claims

According to Rule 7.1 of the Model Rules of Professional Conduct:

“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”

While “truth in advertising” sounds easy enough on the surface, many firms still struggle with ABA violations simply for using superlatives, e.g. “the best lawyer in Seattle” or “Boston’s top law firm.” Both of these claims are considered misleading and unsubstantiated unless accompanied by adequate evidence -- which is just about impossible to fit into an 80-character Google Ads description or a 140-character tweet.

Although few superlative-type claims end up getting reported and you’re no doubt see some of your competitors fluffing up their advertisements, we still recommend erring on the side of caution.


2. Predict success for your clients

While every potential client wants to hear that you’ll win their case, it’s best to hedge your marketing language. Under the same Rule 7.1 on misleading claims, the ABA prohibits marketing that infers the outcome of a case, such as advertisements reading “I will win your case” or “I will get you acquitted.”

We’d also recommend staying clear of referencing past settlement values as doing so could set a misleading or unjustified client expectation. Many states outline additional regulations for citing past results in marketing material as part of Rule 7.1. For example, The California Bar dictates:

“(a) A lawyer shall not make or sponsor a false or misleading communication about the qualifications or the services of any lawyer or firm. A communication is false or misleading if it:

(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materiallyMisleading;

(2) contains any reference in a public media advertisement to past successesor results obtained unless:

(i) the communicating lawyer or member of the law firm served as lead counsel in the matter giving rise to the recovery, or was primarily responsible for the settlement or verdict,(ii) the amount involved was actually received by the client,(iii) the reference is accompanied by adequate information regarding the nature of the case or matter and the damages or injuries sustained by the client, and(iv) if the gross amount received is stated, the attorney’s fees and litigation expenses withheld from the amount are stated as well;

(3) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate these rules or other law;”


3. Imply uncertified specializations

Under Rule 7.4, lawyers cannot state or imply a certain specialty unless:

“(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and(2) the name of the certifying organization is clearly identified in the communication.”

Accordingly, a firm cannot claim to be a “specialist,” “expert,” “certified,” or “board-certified” unless the claim can be properly substantiated.

This one’s also worth double-checking your state Bar’s Rules of Professional Conduct as it’s another one that can vary greatly. Some states, like Colorado, don’t certify lawyers as specialists in any field; and therefore, any such claims must be followed with a detailed disclosure.


4. Reference personal attributes in advertisements

This next one’s a Facebook Ads policy rather than an ABA regulation, but still worthy of a mention.

If you’re planning on advertising on Facebook, Instagram, or the Audience Network, be sure to first consult Facebook’s own set of advertising policies. In particular, the social media giant prohibits mentioning or alluding to personal attributes in your advertisement’s copy.

Among other protected personal attributes, any advertisement that states or implies age, financial status, or criminal record will get immediately rejected by Facebook’s algorithm.

The following ads would be deemed to be in violation with Facebook’s policy:

  • “Joins seniors like you in getting the help they need from our friendly and professional elder law attorneys.” (implies age)

  • “Broke? Our bankruptcy attorneys will help you rebuild credit.” (implies financial status)

  • “Were you wrongly convicted? Our lawyers are here to help.” (implies criminal record)


To get these accepted, broaden the language so that the viewer does not feel like they are being singled out:

  • “Our elder law attorneys are committed to helping Denver’s seniors access friendly, affordable, and professional legal advice.”

  • “Our bankruptcy lawyers help those in need rebuild credit and navigate their legal options. Flexible payment plans available.”

  • “Fighting for those wrongly committed since 1985. Give us a call today if you or someone you know was wrongly committed.”


And what you can* do with legal marketing:

Stay well within the lines of a few basic ABA and any network-side rules, and the sky’s the limit when it comes to what you can do with digital marketing.

With that said, we did want to touch on two popular but controversial legal marketing strategies that warrant a bit of an asterisk.


1. Use geofencing to target hospitals (virtual ambulance chasing)

The cat’s out of the bag. If you’re in the personal injury space, virtual ambulance chasing may offer a quick way to dramatically slash your lead acquisition costs.

Using a technology called mobile geofencing, lawyers can hypertarget their ads and specific hospitals, urgent care clinics, chiropractors, auto repair shops, and other sites frequented by injury victims. This allows them to laser-focus their ad spend on a geographic area and has been seen to improve conversion rates by as much as 310%. (For more on this strategy, see our previous post.)

While this strategy is ABA-compliant in all 50 states, traditional ambulance chasing (or case running) is illegal in 21 states and Washington D.C., as per Rule 7.3 on the Solicitation of Clients.

Traditional case running involves (a) soliciting injury victims at the site of an accident or hospital in-person or through a third-party, or (b) purchasing patients’ contact information for soliciting purposes.

Privacy remains the key distinction between traditional (prohibited) ambulance chasing and virtual ambulance chasing using mobile geofencing. With geofencing, you’re targeting the location rather than specific individuals, thus preserving patients’ privacy. Attempting to digitally target a purchased list of patients, however, would be in violation of both the ABA and HIPAA.

Still, hospital targeting can be a great strategy for personal injury lawyers -- just make sure to do it tactfully.


2. Bid on competitors’ trademarks

In search advertising, it’s a common strategy to bid on the brand names of your closest rivals. This way, whenever anyone searches for “[Competitor Name],” your own ad will be the first result.

Although there’s always the risk of triggering a bidding war between you and your competitors, this strategy can be cost-effective way to steal high-intent leads away from your competitors. Trademarks and firm names usually see little competition and can be purchased for a couple bucks, compared to other legal keyword costs which can reach into the hundreds.

If you’re in North Carolina, go ahead and move this strategy to the “Dont’s” list as a legal ethics rule prohibits competitive keyword advertising. If you’re in any other state, all is fair in love and war.

 

Go with an agency that knows the ins and outs of American Bar Association compliance

Need a hand?

Navigating changing regulations can be a full-time job. At Spatially, we specialize in staying on top of ABA, Facebook, Google, and U.S. regulation so that you can spend less time on marketing and more with your clients.

Fill out this form to set up a call with one of our legal advertising experts.

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