The ethical marketer--March 2009.

• Author: Hornsby, Will

As part of a brochure,Web redesign or new ad campaign, you have a choice. You can herd your cats for those "lawyers-in-action" photos,making sure you collect the best-looking, best groomed folks who do not have soup stains on their shirts on the day the photographer arrives. Or, you can calmly sit at your desk, go to a clip art site and drop in photos of those great-looking 30- something models whom any client would want to handle their legal matters. Easy choice, except maybe it's unethical.

As most marketers know, the state rules that govern advertising include what I call "house-keeping" rules. These are found under the state versions of ABA Model Rule 7.2. (Go to www.abanet.org/adrules to connect with the rules of the individual states.) Through the years, the Model Rule has shed almost all of its house-keeping provisions, keeping only an obligation for ads to include the name and address of a lawyer or firm responsible for the ad's compliance with the rules. Unfortunately most states don't limit their rules in this way. Some include a laundry list of compliance obligations, either banning various types of communications or requiring disclaimers under certain conditions. Some states explicitly govern the use of photos portraying lawyers and clients.

Unfortunately for firms that seek clients nationally, these state rules vary from one another. For example, Pennsylvania simply outright bans the portrayal of a lawyer by someone who is not a lawyer. A few other states ban the portrayal of a lawyer by anyone who is not a full-time lawyer in the firm, who is not a member of the specific state's bar or who is not the lawyer who will provide the services that are being advertised.

Other states permit models or actors, but require the firm to include a disclosure designating that they are not lawyers in the firm. These are the rules that explicitly govern the use of photos.

Other rules, in effect in every state, have a more subtle application...