Recently, a criminal defense attorney firm found a reasonable amount of success by advertising their services through radio. M. Trent Trani & Associates, P.C. (who you can reach by going to tranicriminaldefense.com) is a firm specializing in criminal law with a focus on DUI, drug crimes, violent crimes, and white-collar crime. If you’re based in Denver and are in need of legal advice, try consulting with them.
The above makes you think how a relatively outdated form of marketing is able to make a difference to the success of a law firm, in a city as competitive as Denver where lawyers are needed not just in criminal defense, but also for corporate matters. The simplest reason is that while radio may be conventional, it still does have a following nonetheless with hundreds of thousands, if not millions, of listeners, tuning in and it still makes for an effective marketing platform.
However, a more in-depth reason is that lawyers are a necessity in any society, regardless of the development or economic status it may hold. Crimes are committed everywhere and legal formalities are to be followed in any organized civilized society.
As such, lawyers will always be needed. However, this need is not ignored and the powers that be are incredibly mindful of the existence of this need. For this reason, there are certain rules and laws in place that govern the advertisement of legal services. This article will use the United States as an example to illustrate a framework of rules and laws pertaining to legal advertising.
Unlike a handful of countries, legal advertising is permissible in the United States, provided certain ethical rules and restrictions are followed. These are mostly drafted (and legally recognized) by state bar associations and the permitted mediums of advertising are wide-ranging and include television, radio, print, mail marketing, websites, directories, social media, and the ever-trusty and not-too-subtle billboard.
However, this wise-ranging freedom of advertising medium did not come into existence overnight and its legal recognition has taken a significant amount of time and effort, as will be demonstrated below.
A short history
This freedom to advertise was not always so wide-ranging. In fact, advertising was outright unacceptable covered under the first general framework of ethics, which was established by the American Bar Association in 1908. “The Canons of Professional Ethics” as it is more formally known, prohibited any form of advertisement of legal services or solicitation (indirect or direct) by lawyers.
While not obvious, the first milestone for the advertisement of legal services came about in 1969, under the Model Code of Professional Responsibility. Considering the Canons of Professional Ethics as outdated and irrelevant, and rightly so, the American Bar Association wished to revise the ethical framework and published the Model Code of Professional Responsibility. The Model Code did not expressly state that advertising was legal but subtly addressed that practical considerations of economics and market competition be given precedence over manners and conservative professional conduct.
Formal judicial recognition of the practice came relatively late in comparison to the efforts of the American Bar Association. In 1977, the United States Supreme Court found the practice of advertisement of legal services to be protected by the First Amendment to the Constitution of the United States. Even more surprising is that the Arizona State Bar, being the defendant in the case, believed such advertising to be misleading and unethical, even after recognition under the Model Code in 1969.
The Supreme Court went as far as recognizing that the advertisement of legal services makes it easier for the public to access legal services and be more aware of their rights as given under the Constitution. There was a social debate as to the correlation between advertisement of legal services and the right to a fair trial but whether such considerations were also made by the Supreme Court has not been expressly made clear.
While no specific regulatory body or agency took special notice of the practice of advertisement of services by lawyers, in 2002 the Federal Trade Commission (FTC) was invited by the Supreme Court of Alabama to comment on the then recently published “Information about Legal Services” which contained rules of professional conduct, including the advertisement of services by attorneys and law firms.
The FTC was positive in its response as the proposed rules were in line with the FTC’s main goal is to enforce a free market which promotes competition. Advertising by lawyers and law firms would encourage competition and is an effective method of regulating the market to prevent any anti-competitive business practices
The FTC had a similar response when it came to the advertising of legal services using online mediums. In 2006, the State Bar of Texas followed the lead of the Supreme Court of Alabama and invited the FTC to comment on whether it was ethical for lawyers and firms to engage in online referrals. In the spirit of promoting competition and the access of consumers to valuable legal representation, the FTC approved of the practice.
Even with the promotion of fair competition and the wide-ranging allowance by the American Bar Association and other state bar associations, there are still restrictions in place. There are some practices that are prohibited by every association in the country such as shock advertising and the direct solicitation of clients is still an illegal activity.
New York is one of the states to have recently considered revising its framework in 2005. The revised rules prohibited a number of practices including spam email and no longer allowed the display of testimonials of a former client. Fictional characters, including lawyers, or organizations, like law firms, could not be portrayed.
No judge, sitting or retired, could be portrayed, even if it was in a comedic, satirical, or parodied recreation. Furthermore, the advertisement was to strictly be contained to information about the firm or lawyer, and the area of expertise the lawyer or law firm specialized in or practiced.