The Fine Art of Self-promotion: a Primer on Modern Lawyer Advertising Under the Kansas Rules of Professional Conduct

• Jurisdiction: Kansas,United States
• Pages: 32
• Citation: Vol. 92 No. 6 Pg. 32
• Publication year: 2023

The Fine Art of Self-Promotion: A Primer on Modern Lawyer Advertising Under the Kansas Rules of Professional Conduct92 J. Kan. Bar Assn 6, 32 (2023)Kansas Bar JournalDecember 2023

November 2023

advertising ethics in kansas

The Fine Art of Self-Promotion: A Primer on Modern Lawyer Advertising Under the Kansas Rules of Professional Conduct

By J. Nick Badgerow Spencer Fane LLP

I. Introduction

The bar continues to grow, and the number of lawyers continues to increase, by some 30% in this century.^[1]Meanwhile, as households and businesses continue to struggle with inflation and higher interest rates,^[2] client demand for legal services has fallen, with many choosing to employ in-house counsel or proceed without legal advice. Thus, with more lawyers, an economy struggling, and reduced client demand, the competition for clients is at an all-time high.^[3] Thus, with more lawyers, a struggling economy, and reduced client demand, the competition for clients is at an all-time high.

This means that, even more than ever before, hungry lawyers are seeking means of drawing clients to their practice. As one commentator notes, "The pressure on lawyers to generate legal business, and the competition for clients, can be intense."^[4]

A common way to attract new clients these days is through marketing and advertising.

A law firm marketing plan may cover a mix of digital marketing, SEO ["Search Engine Optimization"^[5]], blogging, print, and digital ads. Your marketing plan may also include many other tactics, including leveraging law firm marketing technology to automate various tasks. But no matter how you approach it, marketing your firm can easily consume a lot of your time and energy.^[6]

But unlike non-lawyers, lawyers are constrained — if not by good taste — by the Model Rules of Professional Conduct as to the manner, method, and wording of their advertising. This concern is exacerbated by the prevalence of the use of the internet and social media, and the absence of specific provisions for such advertising in the Model Rules. This article explores the legal limits imposed by the Model Rules, sets forth some object lessons in the form of real cases, and suggests some considerations for advertising via electronic media.

II. Historic Overview

Olden Times. For centuries, lawyers were not permitted to advertise. Indeed, most lawyers probably did not think to advertise, as they viewed the law as a learned profession whose members would not stoop to such mercantile means to glean clients.

As far back as the nineteenth century, there was a rule of etiquette that one did not advertise their services. The rationale was the prevailing view that law was a form of public service. Therefore, lawyers looked down on advertising as unseemly.^[7]

Canons. This ancient and long-standing prohibition was codified in the first national code of professional responsibility:

[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 of 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.^[8]

One commentator notes:

Canon 27 [of the Canons] banned lawyer advertising, permitting nothing more than business cards. Solicitation was also banned. The bans, along with the other provisions of the Canons, were generally adopted by the highest courts of the individual states, becoming effective and thereby controlling the conduct of lawyers [throughout the Nation].^[9]

Model Code. In 1969, the American Bar Association adopted the Code of Professional Responsibility, which only slightly modified the Canons' general prohibition against all advertising, but at least did allow for lawyer advertising of the lawyer's name, firm, bar admissions, fees, and similar objective information:^[10]

A. A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; as used herein, "public communication" includes, but is not limited to, communication by means of television, radio, motion picture, newspaper, magazine, or book.

B. A lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in city or telephone directories, or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf except as permitted under DR 2-103. This does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name:

1. In political advertisements when his professional status is germane to the political campaign or to a political issue.

2. In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.

3. In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.

4. In and on legal documents prepared by him.

5. In and on legal textbooks, treatises and other legal publications, and in dignified advertisements thereof.

C. A lawyer shall not compensate or give any thing of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item.^[11]

Bates and Its Progeny. These historic and traditional prohibitions and later regulatory limitations were outlawed by the United States Supreme Court as unconstitutional in Bates v. State Bar of Arizona,^[12] by holding that the protections of the First Amendment extend to lawyer advertising and that a state may not constitutionally prohibit a lawyer's newspaper advertisement of fees for routine legal services. The Court rejected the historic prohibition against advertising as an anachronism that had gone out with spats and high collars:

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, 210-211 (1953). Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession. Id., at 211. But habit and tradition are not in themselves an adequate answer to a constitutional challenge. In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind. Since the belief that lawyers are somehow "above" trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.^[13]

However, the Bates Court did not open the door to unbridled and unlimited advertising by lawyers and recognized that the state may prohibit lawyer commercial expression that is "false, deceptive, or misleading" and the state may impose reasonable restrictions as to "time, place, and manner" of the advertising:

In holding that advertising by attorneys may not be subjected to blanket suppression, and that the advertisement at issue is protected, we, of course, do not hold that advertising by attorneys may not be regulated in any way. We mention some of the clearly permissible limitations on advertising not foreclosed by our holding. Advertising that is false, deceptive, or misleading of course is subject to restraint. See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S., at 771-772, and n. 24, 96 S.Ct., at 1830-1831. ... For example, advertising claims as to the quality of services a matter we do not address today are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction. Similar objections might justify restraints on in-person solicitation. We do not foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like, might be required of even an advertisement of the kind ruled upon today so as to assure that the consumer is not misled. In sum, we recognize that many of the problems in defining the boundary between deceptive and nondeceptive advertising remain to be resolved, and we expect that the bar will have a special role to play in assuring that advertising by attorneys flows both freely and cleanly.^[14]

The Bates decision was followed by several subsequent cases that clarified and expanded this constitutional right and further limited the bar's power to regulate lawyer advertising.

In 1985, the Court overruled a state provision that only allowed illustrations to a display of the scales of justice.

In Zauderer v. Office of Disciplinary Counsel,^[15] the subject lawyer published a drawing of an IUD in a newspaper ad seeking clients who had been harmed by the Dalkon Shield. The Court stated that "the mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity."^[16]

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