The Journal of The DuPage County Bar Association

Back Issues > Vol. 14 (2001-02)

I Want To Advertise, But I’m Afraid!!!
By Lynda Keever

Getting new clients in the door is one of the biggest challenges for solo practitioners and small firms. These lawyers do not have the contacts or the resources of larger firms. What to do? Of course, the first thing that comes to mind (once the lawyer has already exhausted the family/friends/acquaintances contact list) is to advertise.

To advertise, perchance to obtain clients: aye, there’s the rub. Aren’t there tricky rules about advertising? Don’t people get sanctioned, or worse, for running afoul of those rules? What are they? And what do they really mean . . . in English?

First of all, take a deep breath, put on your marketing hat, and relax. The rest of this article will give you some definite information about what is and isn’t okay, according to the Rules of Professional Conduct and the ARDC.

Let’s look first to the rules themselves. Supreme Court Rules have the function of law1 and thus are indicators of public policy regarding attorney conduct.2 The rules pertinent to this discussion are 7.1 through 7.5. We’ll take them one at a time.

This rule is all about getting the plain facts to the consumer so that s/he may make an enlightened and informed decision about selecting a lawyer. The leading case regarding this rule is a U.S. Supreme Court Case decided in 1977.4 This case holds that commercial speech is entitled to some first amendment protection, that lawyers may constitutionally advertise prices of routine legal services, and that advertising may, in fact, serve to reduce legal costs to the consumer and benefit the administration of justice. In this case, two Arizona lawyers, whose practice consisted of low cost legal services for routine matters, placed an ad in a local newspaper. The ad stated that the lawyers offered "legal services at very reasonable fees," and listed fees for some of their services.5 According to the court, "commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system."6

A curious set of circumstances occurred in a 1920 case. Here, the lawyer in question, who worked primarily with entertainers, used the same inflated style in his circulars and advertisements that his clients used in the pursuit of business for their entertainment enterprises. In particular, note these lines, which come from a sort of date book published by the lawyer and distributed to people in the entertainment industry:

The theatrical profession, living largely in a world of its own, has most emphatically a body of law of its own. There are unusual contracts, pertaining almost wholly to this profession, to be drawn and construed. There is the domestic side of theatrical life to be considered. These are all things that require not alone a knowledge of this branch of the law but a through [sic] familiarity with the profession itself, in order that the practitioner may specialize with the greatest degree of success in theatrical law. I specialize in theatrical law almost to the exclusion of all other braches of the practice, save those which are incidental to this specialty. Therefore, while this little book is, in the main, offered for the purpose of giving something useful to the members of the profession from which I derive my livelihood and is intended to be a constant reminder of me to them, it has – I may as well admit it – also the purpose of bringing me to the attention of those who do not already know me and of further commending me to those who do. I wish actor clients. I know I can serve them more intelligently than the average lawyer . . .7

In 1920, the Illinois Supreme Court found this conduct to be a violation severe enough to warrant "very severe censure by this court"8. The Court particularly condemned the final sentence of the excerpt, as a gross violation of Rule 7.1(c). Although lawyers are now allowed to advertise, this kind of grandiosity is just as unacceptable today as it was in 1920.

ISBA Advisory Opinion No. 87-12 also addresses this rule. In this case, a trade association desired to include its outside counsel’s name and firm on its letterhead. Additionally, the association wished to provide the attorney with business cards listing both the association’s name and address, and the attorney’s name and firm. The opinion provides, in part, that "inclusion of the attorney’s name on the trade association’s letterhead or business card carries a possibility of misleading the public. . . there is nothing false or misleading under Rule 7.1 about a lawyer accurately being shown on its client’s letterhead as their outside counsel." 9

What does all this mean to the solo or small firm? You may advertise; you may actually advertise prices of some routine services; you may not describe yourself in such a way that the public is misled into thinking of you or your firm in a false light, nor may you compare yourself or your firm to other lawyers. There. That’s simple enough.

This rule guides us with regard to the types of advertising in which lawyers are allowed to engage. As you can "tell the ideals of a nation by its advertisements,"11 so, too, our profession will be characterized by what the public thinks of our "commercials".

A U.S. Supreme Court case, In re Teichner,12 provides an example of a 7.2(b) violation. Mr. Teichner, as the court interpreted the facts of the case, paid several individuals money in the guise of making loans to them as advances on the proceeds of their claims. Those individuals then undertook to talk to friends and acquaintances to encourage those people to engage Mr.Teichner as their attorney in personal injury cases.

The Illinois Supreme Court provided further guidance on this subject in a case that is not about lawyers, but about a chiropractor. This chiropractor published a half-page newspaper ad that offered "FREE CHICKEN," "FREE REFRESHMENTS" and a "FREE SPINAL X-RAY," and contained a section condemning reliance on drugs while extolling the virtues of the drugless chiropractic profession.13 Additionally, the chiropractor posted similar notices on telephone poles and traffic control lights. The court used the Bates14 case to determine whether the chiropractor’s advertising was proper. While the court discussed at length the constitutional protection of commercial speech and the misleading and uninformative nature of the chiropractor’s advertisements, they also went so far as to say that "the attachment of even protected advertising material to traffic-light posts, traffic-control boxes and United States mailboxes would constitute an improper time, place and manner for the advertising of professional services under [Bates]."15

ISBA Opinion No. 96-1 comes to the conclusion that "A lawyer may distribute materials at a seminar and community advocates may distribute the lawyer’s material, which materials must contain at least the name of one attorney responsible for the content. The lawyer would be restricted from giving anything of value to the promoter of the seminar or community advocates for the distribution of the materials."16

What do these cases mean? Use traditional types of advertising media, such as newspapers and phone books, and don’t pay or gift any other person to prospect on your behalf. You or someone from your community can distribute informational brochures and flyers at seminars. Following these general guidelines should keep you safe on Rule 7.2.

At first glance, the language of this rule seems to suggest that lawyers cannot ask for work if their goal is to make money. While all lawyers are altruistic (isn’t that why we all do so much pro bono work?), we still like to enjoy at least a moderate standard of living. The following cases and opinions will clarify some of the exceptions in Rule 7.3(a) and demonstrate why the protective language of Rule 7.3(b) is included in the rules.

Looking first at personal contact by the lawyer with prospective clients brings us to a pair of interesting opinions wherein the activities of the lawyers clearly violate both Rule 7.3(b)(1) and 7.2(b). One ISBA advisory opinion arises from a lawyer hiring someone to personally contact injured people and give them literature encouraging them to hire the lawyer for personal injury work. The opinion states, "In-person solicitation of prospective clients, whether by a lawyer or another on the lawyer’s behalf, is in almost all instances improper. . . . The fact that the solicitation is to be conducted by the lawyer’s representative, rather than by the lawyer himself, is of no import."18

In one case in which a personal injury lawyer visited two young accident victims just after an auto accident (one youth was lying in a hospital bed, the other had just returned home from the hospital) with a concealed tape recorder in his pocket, with which he intended to show their assent to his suggestions that he represent them both, the United States Supreme Court held that a state "constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent."19

Another aspect of the Teichner20 case discussed above is relevant to Rule 7.3(b)(2). In this case, an attorney drove to a town in which there had been a large explosion that injured many of the town’s residents. He got names of injured persons from someone in town whom he knew, then endeavored to get his acquaintance to initiate a conversation between the lawyer and the injured parties. In one particular instance, he did not even wait for his acquaintance to acknowledge whether she had made the call, but contacted the client himself. He arranged a meeting with a man and his wife. The wife was noticeably upset because the family home had been damaged, the family was scattered, and the insurance adjuster was not particularly sensitive to her needs. Demonstrating an even higher level of insensitivity, the lawyer sought to be retained on a contingent fee basis. When he got no satisfaction from his first visit, he returned later in the day and was told by the husband that they did not wish to retain an attorney.21

In yet another twist on this theme, in an Eleventh Circuit case, a pair of apparently propriety-oblivious attorneys had their firm’s "public relations" people ask doctors and chiropractors to recommend the lawyers to injured or grieving parties who might be in need of legal services. In exchange for these recommendations, the lawyers took the doctors and chiropractors to lunch and provided free legal services.22 It is important to note that if these were Illinois attorneys, they would not only have breached of Rule 7.2(b), but Rule 7.3(b)(1) as well.

Attorneys now frequently turn to direct mail to promote their services. Three cases provide good examples of the right and wrong ways to use this marketing technique. In a U.S. Supreme Court case, the lawyers sent direct-mail solicitations to victims and their relatives for the 30-day period following an accident or disaster.23 In this case, the court examined the propriety of direct-mail solicitations in the immediate aftermath of accidents and found that Florida’s Rules of Professional Conduct properly banned such activity, which the court characterized as harmful to the reputation and public opinion of the profession.24

For a look at a tastefully written direct mail piece that was approved by the U.S. Court of Appeals for the Tenth Circuit, read Revo v. Disciplinary Board of the Supreme Court of New Mexico.25 The court, upon reviewing this letter (which was clearly labeled "LAWYER ADVERTISEMENT") commented that while the Board found Mr. Revo’s letter misleading, the record did not support this contention. The court felt it necessary to put into the record quotations from the appellant’s documentation to demonstrate that Mr. Revo’s letters were "carefully worded to avoid creating false impressions."26

As technology continues to change how we practice law, the ISBA continues to issue advisory opinions on new methodology brought before it. The ISBA was asked about the use of 900 or 976 telephone numbers by an attorney who planned to charge $15.00 for a five minute recording of information about Illinois law. The ISBA stated: "prerecorded telephone advertisements are permitted. They are generally considered as non-invasive as written advertisements, because the recipient of the call can terminate the communication simply by hanging up."27

How do the foregoing cases relate to your own practice? Let’s say you decide to try flyers as a new marketing tool. Two calls on different days to the ARDC brought two different responses. The callers inquired about whether it was permissible to distribute flyers door-to-door or put them on cars in parking lots. The first caller was advised to read the rules and look to the ISBA’s website28 for Illinois advisory opinions to determine which such measures were permissible. The second caller was advised that flyers distributed in both ways are permissible as long as the person (NOT the lawyer) who distributes the flyers has no personal, conversational contact with the prospective client. The second person was also advised, of course, to read the rules and follow them carefully.

When you create a new piece of marketing material, you should carefully review the language of Rules 7.1-7.5. Call the ARDC to run it by them. Check the proposed material against the case law. The old saw about an ounce of prevention and a pound of cure applies here. After all, wouldn’t you advise your clients to carefully review the applicable law before taking a proposed course of action?

The rules governing how lawyers may inform the public of the areas of law in which they practice vary significantly from state to state. The rules in Illinois are much less restrictive than others. For example, our neighbors in Missouri prescribe the specific language you must use to designate your practice. For instance, if you are a personal injury lawyer, you must use the phrase "tort law" when describing your work on business cards and letterhead.30

Fortunately, here in Illinois the rules are not so specific. The Illinois Supreme Court does not recognize certifications of specialties in the practice of law.31 While the rules allow descriptions of the types of matters the lawyer will accept, there are also only a select few types of legal work for which the attorney can claim specialties, such as trademarks, admiralty, and patents.

The ISBA has issued an advisory opinion on the issue of whether the language "specializing in" or "concentrating in" may imply a certification or additional expertise of the lawyer to the general public. The opinion states: "We are of the belief that while the law firm may properly hold itself out as "concentrating" its practice in intellectual property law, it cannot hold itself out as "specializing" in such area."32

Use this language when you create your announcements and promotional materials.

Letterhead seems pretty straightforward, but this next case, which also involves Rule 7.4(b), illustrates how something apparently benign can create difficulties for the unsuspecting lawyer.

The Supreme Court of Illinois has also passed judgment on the word "certified." An attorney had put on his letterhead "[attorney name], Certified Civil Trial Specialist by the National Board of Trial Advocacy. Licensed: Illinois, Missouri, Arizona."34 After fairly exhaustive discussion, the Court determined that "the claim of certification by the NBTA impinges upon the sole authority of this court to license attorneys in this State and is misleading because of the similarity between the words "licensed" and "certified."35 So, in addition to not using "specializing in," lawyers must be certain not to imply, by using the word "certified," that they have been additionally educated or granted expertise status by the Supreme Court of the State of Illinois.

Another facet of Rule 7.5 concerns the connection between two businesses. How can a lawyer publicize his or her position in relation to that connection? Our First District Appellate Court found that a business contract for "legal services and services ancillary thereto"36 was actually a "feeder" business for legal services; that is, business contacts used as a basis for soliciting legal employment. The court held that "When the contract at issue here is scrutinized in the light of a public policy rationale against "feeder" businesses and in-person solicitation by lawyers, we agree with the trial court that it offends public policy."37 Clearly, the careful attorney will stay away from this type of arrangement.

In summary, the first thing to do when deciding what kind of marketing your firm will use is to refer to the Illinois Rules of Professional Conduct. Second, review current case law to determine what sorts of advertising are definitely off limits. Third, plan your advertising and work your plan. Your gut feeling is also useful. If you think it’s over the edge, don’t go there.

Finally, don’t become discouraged. A marketing consultant recently related that if you choose flyers or other periodic advertising, new pieces should be appearing to those people on your list every six weeks. Even at that, says this expert, results won’t begin to appear until some four or five mailings/door-to-door events. However, this person claims to have the ability to enlarge his own practice by 20 to 30 clients each month at will. If this is so, his theory apparently works.

Additional resources recommended by one of the staff members at the Illinois Institute of Continuing Legal Education are Focus: The Future of Your Company Depends On It, by Al Ries,38 and The 22 Immutable Laws of Marketing: Violate Them at Your Own Risk, by Al Ries and Jack Trout.39 Good luck!

1 Harris v. Annunzio, 411 Ill. 124 (19452).

2 Ben & Assoc., Ltd. V Nelsen Steel & Wire, Inc., 107 Ill. App. 3d 442,447 (1982).

3 A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate these Rules or other law; or

compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated Illinois Rules of Professional Conduct, Rule 7.1.

4 Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

5 Id., 354.

6 Id., 364.

7 The People ex rel. The Chicago Bar Ass’n. v. Berezniak, 292 Ill. 305, 308 (1920).

8 Id., 317.

9 ISBA Advisory Opinion No. 87-12.

10 (a) Subject to the requirements of Rule 7.1, a lawyer may advertise services through public media, such as telephone directories, legal directories, newspapers or other periodicals, billboards, radio or television, or through written communication not involving solicitation as defined in Rule 7.3, provided:

(1) a copy or recording of the advertisement or written communication is kept for three years after its last dissemination along with a record of when and where it was used; and

(2) any communication made pursuant to Rules 7.1 and 7.2 includes the name of at least one lawyer responsible for its content.

(b) A lawyer shall not give anything of value to a person for recommending or having recommended the lawyer’s services, except that a lawyer may pay the reasonable cost of advertising or written communication permitted by Rules 7.1 and 7.2 (including fees of personnel preparing such advertising or communication) and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization. Illinois Rules of Professional Conduct, Rule 7.2.

11 Norman Douglas, South Wind, Ch. 7 (1917).

12 In re Teichner, 75 Ill. 2d 88 (1979).

13 The statutory rules governing the advertising practices of chiropractors are much more restrictive than the Rules of Professional Conduct. "Any person licensed under this Act may list his name, title, office hours, address, telephone number and any specialty in professional and telephone directories; may announce, by way of a professional card not larger than 3 ½ inches by 2 inches, only his name, title, degree, office location, office hours, phone number, residence address and phone number and any specialty . . .listings in public print, in professional and telephone directories, or announcements of change of place of business, absence from, or return to business may not be made in bold faced type." Ill. Rev. Stat. 1971, ch 91, par. 16a – 1.

14 433 U.S. 350 (1977).

15 Talsky v. Dept. of Registration & Educ., 689 Ill. 2d 579, 594 (1977).

16 ISBA Advisory Opinion No. 96-1.

17 Except as provided in this Rule 7.3, or as permitted by Rule 7.2, a lawyer shall not, directly or through a representative, solicit professional employment when a significant motive for doing so is the lawyer’s pecuniary gain. The term "solicit" means contact with a person other than a lawyer in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient.

(a) Except as provided in Rule 7.3(b), a lawyer may initiate contact with a prospective client for the purpose of solicitation in the following circumstances:

(1) if the prospective client is a relative, or a close friend of the lawyer, or a person with whom the lawyer or lawyer’s firm has had a prior professional relationship;

(2) by letters or advertising circulars, providing that such letters and circulars and the envelopes containing them are plainly labeled as advertising material; or

(3) under the auspices of a public or charitable legal services organization or a bona fide political, social, civic, charitable, religious, fraternal, employee or trade organization whose purposes include but are not limited to providing or recommending legal services.

(b) In no event may a lawyer solicit a prospective client if:

(1) the lawyer reasonably should know that the physical or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;

(2) the lawyer knows that the person solicited does not desire to receive a communication from the lawyer; or the solicitation involves coercion, duress, or harassment. Illinois Rules of Professional Conduct, Rule 7.3.

18 ISBA Advisory Opinion 97-02.

19 Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 449 (1978).

20 In re Teichner, 75 Ill. 2d 88 (1979).

21 Id. at 108.

22 Falanga v..State Bar of Georgia, 150 F.3d 1333,1334 (1998).

23 Fla. Bar v. Went For It., Inc., 505 U.S. 618 (1995).

24 Id. at 628.

25 106 F.3d 929 (1997).

26 Id. at 932.

27 ISBA Advisory Opinion 97-06.

28 www.illinoisbar.org

29 A lawyer or law firm may specify or designate any area or field of law in which the lawyer or firm concentrates or limits the practice of law. In this regard, a lawyer or firm may specify:

(1) a description of the types of legal matters in which the lawyer or firm will accept employment and a statement as to whether the lawyer or firm concentrates or limits the practice of law to one or more particular fields; and

(2) other information about the lawyer or firm, the practice engaged in, or types of legal matters in which employment will be accepted, which a reasonable person might regard as relevant in determining whether to seek the services offered.

(b) The Supreme Court of Illinois does not recognize certifications of specialties in the practice of law, nor does it recognize certifications of expertise in any phase of the practice of law by any agency, governmental or private, or by any group, organization or association. However:

(1) a lawyer admitted to practice before the United States Patent and Trademark Office may use the designation "Patents," "Patent Attorney," "Patent Lawyer," or "Registered Patent Attorney," or any combination of those terms;

(2) a lawyer engaged in trademark practice may use the designation "Trademarks," "Trademark Attorney" or "Trademark Lawyer," or any combination of those terms; or

(3) a lawyer engaged in admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or "Admiralty Lawyer," or any combination of those terms.

(c) Except when identifying certificates, awards or recognitions issued to him by an agency or organization, a lawyer may not use the terms "certified," "specialist," "expert," or any other, similar terms to describe his qualifications as a lawyer or his qualifications in any subspecialty of the law. If such terms are used to identify any certificates, awards or recognitions issued by any agency, governmental or private, or by any group, organization or association, the reference must meet the following requirements:

(1) the reference must be truthful and verifiable and may not be misleading in violation of Rule 7.1;

(2) the reference must state that the Supreme Court of Illinois does not recognize certifications of specialties in the practice of law and that the certificate, award or recognition is not a requirement to practice law in Illinois. Illinois Rules of Professional Conduct, Rule 7.4.

30 In re R.M.J., 455 U.S. 191, 195 (1982).

31 Illinois Rules of Professional Conduct, Rule 7.4(b).

32 ISBA Advisory Opinion No. 96-08.

33 (a) A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit the lawyer’s name to remain in the name of a law firm or to be used in professional notices of the firm during any substantial period in which the lawyer is not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use the lawyer’s name in the firm name or in professional notices of the firm.

(a) A law firm shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the firm name may be used in each jurisdiction.

(b) A trade name may be used by a lawyer in private practice if it is not misleading. A lawyer or law firm using a trade name in any advertising must include the name of at least one lawyer responsible for its contents.

(c) Lawyers may state or imply that they practice in partnership or other organization only when that is the fact.

34 In Re Peel, 126 Ill. 2d 397,398 (1989).

35 Id. at 984.

36 Benn & Assoc., Ltd. v. Nelsen Steel & Wire, Inc., 107 Ill. App. 3d 442, 443 (1982).

37 Id. at 448.

38 Al Ries, Focus: The Future of Your Company Depends on It, HarperBusiness, 1996.

39 Al Ries and Jack Trout, The 22 Immutable Laws of Marketing: Violate Them at Your Own Risk!, HarperBusiness, 1993.

Lynda Keever is an Assistant Attorney General with the Industrial Commission in Chicago. Ms. Keever earned her B.A. from Millikin University in 1977 and her J.D. from Chicago-Kent College of Law in 1999. She is a member of the DuPage County Bar Association Real Estate Law and Practice Committee, the DuPage County Bar Association Estate Planning Law and Practice Committee, the Chicago Bar Association, and the American Bar Association.


 
 
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