Attorney Advertising and Social Media Gene Major Attorney

Attorney Advertising and Social Media Gene Major Attorney Compliance Division Director State Bar of Texas 2019

Advertising Rules • Protect the public from false, misleading and deceptive communications • Advertising Rules specify conduct for attorneys who promote their services to the public • Part VII of the TDRPC (7. 01 – 7. 07) • Violations subject lawyers to the grievance process

Advertising Review Committee (ARC) • Meetings to review submissions • Interpretive Comments are drafted by the Committee • Committee members appointed by the SBOT President • Comprised of attorneys and non attorneys

Ad Review Application Process for review: • • Pre-approval: • • 25 days prior to dissemination of the ad • If approved, can offer “safe harbor” from disciplinary proceedings as long as final version replicates pre-approved version. If any violations are noted, 20 days to cure and resubmit or state not going to move forward Concurrent filing: • • File with ARC same day as dissemination. • Failure to respond to ARC will be referred to CDC. If violations are noted, 10 days to cure or permanently stop dissemination.

ARC Committee – Proposed Revised Rules • President Vick requested the ARC study and prepare revisions to Part VII, TDRPC. • ARC reviewed recent revisions to the ABA Model Rules, Virginia Bar Association’s revised rules • ARC submitted proposed revised rules to President Vick on April 2, 2018. • Board of Directors forwarded proposed rules to the Committee on Disciplinary Rules and Referenda (CDRR) at the June 2018 Board of Directors Meeting.

Committee on Disciplinary Rules and Referenda • CDRR was created via the Bar’s Sunset Legislation. • Committee to be “clearinghouse” for potential disciplinary rule revisions. • CDRR to recommend rule revisions to the Board of Directors. • Board of Directors submit ratified proposed rules to the Supreme Court. • Supreme Court to decide to hold a referendum on rules.

ARC Committee – Proposed Revised Rules • Proposed Rule Revisions: • Streamline the rules from 7 parts down to 5. • Combined salient portions of the current rules while eliminating the explanatory portions of the rules. • Combined current portions of the rules regarding advertising and solicitation communications into one rule.

Advertising Rules – When to File? • The filing requirement applies when: • address the qualifications or the services of any lawyer or firm • are not exempt under Rule 7. 07(e) • are generally available to the public

Attorney Advertising Impact • U. S. Chamber of Commerce’s Institute for Legal Reform, a group that often advocates against widespread attorney advertising, found that lawyers were on track to spend $892 million on advertising in 2015, and that personal injury firms accounted for 23 of the top 25 Google keywords that link ads to online searches.

Attorney Advertising: 823 Million in 2015 Bloomberg Businessweek

Attorney Advertising Impact Today, we spend $60 million a year and we talk to between two and three thousand new people everyday, ” Morgan said. “We do it because it works in a very substantial way. ” John Morgan of Morgan and Morgan, New York City

Attorney Advertising and the Internet • 96% of people seeking legal advice use a search engine. (Google Consumer Survey, Nov 2013) • 74% of prospects beginning a search online end up contacting the office via phone. (Find. Law U. S. Consumer Legal Needs Survey 2014) • 71% of people looking for lawyer think it is important to have a local attorney. (Find. Law U. S. Consumer Legal Needs Survey 2014)

40 th Anniversary of the ad that started it all… (June 1977)

Texas Advertising Rules • The Number One Rule: ARC does not nor can it be blamed for regulating taste issues.

Texas Advertising Rules

Texas Advertising Rules

Attorney Advertising – Federal Case Law • Alexander v. Cahill, 598 F. 3 d 79 (2 nd Cir. 2010) • Harrell v. The Florida Bar, 608 F. 3 d 1241 (11 th Cir. 2010) • Public Citizen Inc. v. Louisiana Attorney Disciplinary Board, 632 F. 3 d 212 (5 th Cir. 2011)

Cahill v. Alexander (US Court of Appeals 2 nd Circuit) NY’s Appellate Division’s New Rules Prohibited: • Client testimonials • Utilize a nickname or moniker Alexander & Catalano (The Heavy Hitters) • Attention getting techniques unrelated to attorney competence

Cahill v. Alexander (US Court of Appeals 2 nd Circuit) • Irrelevant components of advertising does not equate to misleading advertising • Questions of taste or effectiveness in advertising are generally matters of subjective judgement.

Rule 7. 01 Firm Names and Letterhead • Prohibits the use of trade names • Examples of violations • “Texas Legal Center” • “The Employment Law Clinic” • Prohibits lawyers from holding themselves out to be partners, shareholders or associates. • Descriptive url’s are OK if rule compliant.

Descriptive URL

Interpretive Comment 28 • Firm Names CAN be an Acronym of the initial letters of attorney’s surnames provided: • Does not constitute a trade name • Is not misleading • Is not prohibited under the rules • DLA Piper is compliant, WIN Law Firm is not.

Rule 7. 02 Communications Concerning a Lawyer’s Services • Prohibits false, misleading, or deceptive statements. • Examples: • Material misrepresentations or omissions • Guaranteeing results or creating unjustified expectations • Unsubstantiated comparison of services • Advertising as a specialist, unless approved under Rule 7. 04 • References to past successes/results need specific disclosure information

Rule 7. 02: 2005 Revisions Constrain References to Past Successes or Results • No reference to past successes or results unless: • Lawyer was lead counsel or primarily responsible for the verdict or settlement • Amount involved was actually received by the client. (Net to client dollar amount) • Case and damage information is provided • Attorney’s fees and litigation expenses are disclosed if the verdict amount or gross settlement amount is referenced

Rule 7. 04 Advertisements in the Public Media • Public media ads are materials that are made available to the general public including: • • Billboards Print ads in magazines, newspapers Yellow pages Television and radio ads, including “infomercials” and paidfor call-in shows • Websites

Rule 7. 04 Advertisements in the Public Media • What is not considered a Public Media Advertisement: • Legal newspapers • Legal directories • Letters or materials mailed to other lawyers • Information sent because of a request • Information sent to clients, past clients.

Rule 7. 04 Advertisements in the Public Media – continued • Must designate the geographical location of principal office • Sets guidelines for attorneys who advertise the following: • Contingency fees / cases to be referred / ad is paid for by another lawyer / Ad is paid for by a cooperative of lawyers • Cannot use an actor to portray a lawyer • Be cautious with the use of “clip art” on websites

Rule 7. 04 – Revisions - 2005 • Drops the Board Certification disclaimer of “Not Board Certified by the Texas Board of Legal Specialization” • If not Board Certified by TBLS, must stay away from language that alludes to a specialization • Permitted statements: “limits practice to, ” “focus on, ” “emphasis on”

Rule 7. 05 Prohibited Written, Electronic or Digital Solicitations - General • Cannot reveal on the envelope the nature of the legal problem or matter. • Must be marked ADVERTISEMENT on the front page separate and apart from text, and on the envelope (front) in a conspicuous manner. • Must comply with 7. 02 (can’t be false, misleading or deceptive), and parts of 7. 04. • Must state how the lawyer obtained the information that prompted the communication. • (Where did the attorney get the person’s name)

Advertising Rules and Social Media • The Rules include all forms of communication. • Applies to audio, audio-visual, digital, electronic, infomercials and recorded telephone messages, not just written materials • An advertisement or solicitation communication remains subject to the rules regardless of the media used.

Advertising Rules and Social Media • The filing requirement applies when: • address the qualifications or the services of any lawyer or firm • are not exempt under Rule 7. 07(e) • are generally available to the public • Landing/Home pages are considered advertisements if information goes beyond what is exempt under R. 7. 07(f)

R. 7. 07 – Exemptions from Filing • Tombstone Information / Business Card • the particular areas of law in which the lawyer or firm practices or concentrates or to which it limits practice • TBLS Board Certified Area of Law • the date of admission of the lawyer or lawyers to the State Bar of Texas, to particular federal courts, and to the bars of other jurisdictions • technical and professional licenses granted by this state and other recognized licensing authorities

Who knew we had so much free time to Blog? ?

Rule 7. 04 Advertisements in the Public Media • Blogs are not considered a Public Media Advertisement if: • Educational or editorial in nature • Commenting on a specific area of law, or development in an area of law. • Main goal of blogs is to have someone read how wonderful you are/gain credibility on a subject area

Internet, Blogs and The Rules - Review • All attorney communications are covered under R. 7. 02 • Landing/Home pages are considered advertisements if information goes beyond what is exempt under R. 7. 07(f) • Commenting on a specific area of law, or development in an area of law is fine, provided the communication does not violate the rules.

Rule 7. 07 Filing Requirements • Committee can request substantiation of any claim made in advertisement. • Penalty for not filing an advertisement is a non-filer fee of $300. • Failure to file is a violation of disciplinary rules.

TYLA Pocket Guide: Social Media 101 http: //www. tyla. org

Social Media 101 Table of Contents • • • • Is all speech regulated? What are the basics What do I have to file with the State Bar Are there exemptions to the filing requirement What if I don’t file What is included in the definition of social media Websites/Blogs Online Profile Status Updates Email and Newsletters Advertising by Email Mobile Phone Applications Friends & Clients • And much more

Advertising Review Committee • Download the Application for Submission, Part VII of the Texas Disciplinary Rules of Professional Conduct and Interpretive Comments by the Advertising Review Committee: www. texasbar. com/adreview • To contact Advertising Review Gene Major Director, Advertising Review 800 -566 -4616 Gmajor@texasbar. com