Attorney Advertising Rules: Compliance and Guidelines for Texas Lawyers

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

2. 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

3. 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

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

5. 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.

6. 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.

7. 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.

8. 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

9. 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.

10. Attorney Advertising: 823 Million in 2015Bloomberg Businessweek

11. 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

12. 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. (FindLaw U.S. Consumer Legal Needs Survey 2014) • 71% of people looking for lawyer think it is important to have a local attorney. (FindLaw U.S. Consumer Legal Needs Survey 2014)

13. 40th Anniversary of the ad that started it all… (June 1977)

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

15. Texas Advertising Rules

16. Texas Advertising Rules

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

18. Cahill v. Alexander (US Court of Appeals 2ndCircuit) 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

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

20. 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.

21. Descriptive URL

22. 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.

23. 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

24. 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

25. 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 paid-for call-in shows • Websites

26. 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.

27. 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

28. 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”

29. 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)

30. 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.

31. 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)

32. 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 its 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

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

34. 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

35. 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.

36. 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.

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

38. 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

39. 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