Lawyers' Electronic Advertising: Websites, Blogs, LinkedIn, etc., 0318 ALBJ, 87 J. Kan. Bar Assn 3, 40 (2018)

Author:J. Nick Badgerow, J.
Position::87 J. Kan. Bar Assn 3, 40 (2018)

Lawyers' Electronic Advertising: Websites, Blogs, LinkedIn, etc.

87 J. Kan. Bar Assn 3, 40 (2018)

Kansas Bar Journal

March, 2018

          J. Nick Badgerow, J.

         I. Introduction

         Just as the rules of professional conduct generally, the rules on lawyer advertising have evolved over time. While advertising of any kind was previously prohibited by practice or by rule, society and the bar have changed, and so have the les on lawyer advertising. The advent of the internet and the ubiquity of social media are causing a rapid change in society, in the practice of law, and in lawyer ethics, to keep up with the times. And lawyers, never on the forefront of technological development, are struggling to keep up. But of course they must do so within the parameters of what is permitted by the rules of professional responsibility[1] The purpose of this article is to explore the evolution of lawyer advertising, and the various cases and ethics opinions which strive to keep up with this evolution, applied to various means of social networking to promote business for the lawyer.

         II. Background—the Regulation of Lawyer Advertising

         A. Ye Olde Rules – “Lawyers Do Not Advertise.”

         For centuries, advertising by lawyers was considered unprofessional, and was generally outlawed. The hustle of the marketplace will adversely affect the profession’s service orientation, and irreparably damage the delicate balance between the lawyer’s need to earn and his obligation selflessly to serve. Advertising is also said to erode the client’s trust in his attorney: once the client perceives that the lawyer is motivated by profit, his confidence that the attorney is acting out of a commitment to the client's welfare is jeopardized. And advertising is said to tarnish the dignified public image of the profession.[2]

         The original self-imposed disapprobation of lawyer advertising originated—like much of American law practice—with the English barrister, who viewed advertising as impolite and a violation of etiquette. While there was no express rule against advertising imposed upon members of the bar, barristers eschewed advertising by themselves, and they disapproved of advertising by others.

         It appears that the ban on advertising originated as a rule of etiquette and not as a rule of ethics. Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on “trade” as unseemly. See H. Drinker, Legal Ethics 5, 210-11 (1953). Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession. Id., at 211.[3]

         Since they viewed the practice of law as a public service, traditional English lawyers in the eighteenth and nineteenth centuries looked down on the “trades” as unseemly and ungentle-manly.[4] Surely, only a tradesman would advertise his wares.[5]

         With the formation of the Law Society in England in 1825,[6] this general disapproval was formalized. For example, Rule 1 of the Solicitor’s Practice Rules disallowed “touting, advertising, or unfairly attracting business.”[7] This concept continued even into the late twentieth century. Indeed, the Law Society’s prohibition on lawyer advertising was not relaxed until 1984.[8]

         In the United States, the first national statement of general rules of professional conduct was stated in the Canons of Professional Ethics, adopted by the American Bar Association in 1908.[9] Rule 29 of those Canons allows for the use of business cards: But solicitation of business by circulars or advertisements, or by personal communications or interviews, not warranted by personal relations, is unprofessional. It is equally unprofessional to procure business by indirection through touters or any kind, whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning causes in which the lawyer has been or is engaged, or concerning the manner of their conduct, the magnitude of the interests involved, the importance of the lawyer’s positions, and all other like self-laudation, defy the traditions and lower the tone of our high calling, and are intolerable.[10]

         The Canons were replaced in 1969 by the Model Code of Professional Responsibility.11 Under the Code, (which applied to Kansas lawyers from 1969 until the adoption of the Model Rules of Professional Conduct in 1988),[12] lawyer advertising was still strictly limited. For example, Disciplinary Rule 2-101(A) under the Code, entitled “Publicity” mandated: (A) A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf.13

         Ten, subsection (B) of this Disciplinary Rule provided a specific list of the information which could be included – most of it biographical and all of it objective, and subsection (C) required a lawyer to petition the Disciplinary Administrator if the lawyer wished to include other or additional information in the lawyer’s advertisements.14 Most states (including Kansas) followed the Model Code until it was replaced.[15]

         B. Bates. In 1977, the United State Supreme Court addressed the issue of lawyer advertising from the standpoint of constitutionality and free speech, within the context of the Model Code’s prohibitions. In Bates v. State Bar of Arizona,16 the Court held that a state bar rule prohibiting lawyer newspaper advertising was an unconstitutional infringement of a lawyer’s First Amendment rights. While the case represented a landmark, its actual holding was limited, stating only that that state cannot constitutionally prohibit a lawyer from advertising in a newspaper ad the lawyer’s willingness to provide “routine” legal services at specified prices.

         C. Zauderer. Thereafter, in 1985, U.S. Supreme Court held in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, that a lawyer could not be prohibited from publishing an ad containing a picture of a Dalkon Shield (an intrauterine contraceptive device), advising that potential clients could still file claims arising from the use of that device, since the statute of limitations had not yet run.17

         D. Shapero. Ten, in Shapero v. Kentucky Bar Association in 1988, the Supreme Court held that a state could not ban direct mail advertising by lawyers, though a ban on direct personal solicitation was still appropriate.18 Earlier, the Supreme Court had explained this ban on personal solicitation by holding “those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of vexatious conduct” which might arise from person solicitation override a lawyer’s interest in communicating with potential clients.19

The State is free to fashion reasonable restrictions with respect to the time, place and manner of solicitation by members of its Bar. See Bates v. State Bar of Arizona, 433 U.S. [350] at 384 [(1977)]; Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. [748] at 771 [(1976)], and cases cited therein. The State’s special interest in regulating members of a profession it licenses, and who serve as officers of its courts, amply justifies the application of narrowly drawn rules to proscribe solicitation that in fact is misleading, overbearing, or involves other features of deception or improper influence.20

         E. The Test. This line of cases has led to a four-part test generally applied by the courts in determining whether a state’s ban on lawyer advertising is constitutional: 1. The state can prohibit advertising which is false or misleading;

2. Even if advertising is not false or misleading, the state may limit advertising if the state shows a substantial governmental interest, such as preventing the potential ills caused by in-person, direct solicitation;

3. The regulation must directly advance that state interest; and

4. The regulation must be reasonable, and drafted narrowly enough to achieve the desired result.21

         F. The Model Rules of Professional Conduct - Current Kansas Rule 7.1.

         The Model Code was eventually replaced by the Model Rules of Professional Conduct, which have now been adopted in 49 states, plus the Virgin Islands and the District of Columbia—either with or without the Comments which accompany the Model Rules.22 California alone has not adopted the Model Rules.2...

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