Legal Marketing Through the Decades: Pitfalls of Current Marketing Trends

Historically, there were no regulations against advertising by professionals. It was at the beginning of the twentieth century when various state jurisdictions adopted rules prohibiting professional advertising. Eventually the legal system recognized the right of professionals to advertise their services, in accord with established rules regarding the uses and limitations on the rights of the attorney and their clients. It then undertook extensive inquiries concerning the limitations on the right to advertise services. Creative approaches to marketing one’s services have resulted in equally creative approaches to corral such marketing practices. Despite all of the promulgated rules emanating from the legal system regarding the marketing and providing of legal services, there is very little co-professional reporting of violations of the established rules. Advertising is commercial speech usually protected by the First Amendment as long as the speech is legitimate and not misleading. The U.S. Supreme Court has addressed the issue of attorney advertisement and held that “truthful advertising of “routine” legal services is protected by the First and Fourteenth Amendments against blanket prohibition by a state.” But, the Court reserved the question of “in-person solicitation of clients – at the hospital room or the accident site, or in any other situation that breeds undue influence – by attorneys or their agents or ‘runners.’” The U.S. Supreme Court, while acknowledging protection of free speech for legal advertisements, has held that “in person solicitation of professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services, let alone with forms of speech more traditionally within the concern of First Amendment.” However, the U.S. Supreme Court has also held that a state may not “categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and non-deceptive letters to potential clients known to face particular legal problems.” The U.S. Supreme Court has indicated that state bar associations can regulate the time, place, and manner of attorney advertising as long as it is narrowly tailored to protect its substantial interest in regulating the advertising. As an example, in a subsequent case, the U.S. Supreme Court upheld a state bar association’s 30-day restriction before an attorney could send direct-mail solicitations to victims of an accident or disaster. In an attempt to provide guidelines for attorneys, as well as state bar associations, the American Bar Association [ABA] has established and continues to evaluate and update Model Rules of Professional Conduct [MRPC]. False or misleading communications are prohibited. If a lawyer’s communication contains a misrepresentation that is material about a law or fact it is considered misleading, even if it is an omission of a fact, it is considered misleading under the MRPC.