Updates on legal ethics: from online case summaries to social media.

• Author: Hornsby, Will
• Position: THE ETHICAL MARKETER

Because legal services marketing is creative, fast-moving and occasionally edgy, it always outpaces the development of policies that govern it. Law firms that wait for answers about concepts like marketing through social media are often left in the dust of those firms willing to move forward in the absence of direction. Likewise, those firms that embrace new media put their lawyers at risk of disciplinary action and other consequences.

Over the past few months, cases and ethics opinions have emerged that give further direction to the ethical propriety of marketing legal services. Cases have looked at how far states can go to regulate law firm marketing in general and through the Internet specifically. Recent ethics opinions have addressed the firm's right to include prior successes in its marketing and the lawyer's obligations when participating in social media sites.

I believe Stern v. Bluestone, 883 NYS 2d 782 (June 11, 2009), is the most important decision involving lawyer marketing this decade. Bluestone was a lawyer who represented lawyers in legal malpractice matters. He faxed his newsletters to other lawyers. Over about a year and a half, Stern received 14 newsletters faxed by Bluestone and sued him under a provision of the Telephone Consumer Protection Act that prohibits anyone from faxing unsolicited advertisements. Bluestone's defense was that the newsletters were not advertisements, but rather "informational messages" that the act did not cover. The court found that even if Bluestone had sent the newsletters in the hope of getting business, the content was "at most, an incidental advertisement, which does not convert the entire communication into an advertisement."

Even though the Stern case does not involve ethics rules, it is important because it clarifies the limit of state regulation of lawyer advertising. Regardless of the lawyer's intent to get business, if a communication does not advertise on its face, it is not deemed an advertisement and is beyond the scope of the state's regulation.

In August, a U.S. District Court ruled on the constitutionality of restrictive-advertising rules that were then pending in Louisiana. In Public Citizen, Inc. v. Louisiana Attorney Disciplinary Board, at www.abanet.org/cpr/professionalism/smj_ad_rules.pdf, the court upheld most of the rules, finding that the state had met its burden showing that the rules addressed problems and did so narrowly. However, the court concluded that those...