Making Rain: Abiding by rules 7.1 and 7.2 in a #DigitalWorld

November 18, 2015

stohler-making-rainRecently, I had the pleasure of attending an Indiana Lawyer CLE program on how lawyers and law firms should interpret the professional code of conduct regarding digital advertising and communications.

My conclusion from the entire discussion is that there are a few things that are clear and there is a lot that is still pretty fuzzy.

What is clear:

• If you send out something electronically or otherwise that promotes the services you provide, it needs to be marked as “Advertising Material.” Those are the magic words. You can’t say “Promotional Material,” “Advertisement,” or some other derivative of what is outlined in the rules.

• You must have the name of the firm or at least one lawyer and the street address of the firm on your communication materials. No virtual offices allowed as of yet.

• There is without a doubt an obligation to client confidentiality. It was even suggested that if you are using reported cases on your website, you should get the client’s permission.

• Attorneys cannot have testimonials, although this restriction may be deleted if current proposed changes to the rules are approved in Indiana.

• The “forbidden five” are alive and well. Attorneys cannot say they are specialists, specialize, have a specialty, are experts or have expertise. Unless, of course, they truly do have a specialty practice recognized by the American Bar Association.

So, now let’s talk about the gray areas.

Blogs. It seems like these are OK as long as you evaluate whether they are promotional with the intention of getting someone to hire you, or if they are informational with a much more subtle approach of providing useful content to the reader. If the blog is being used to try to get clients to hire you, it should contain “Advertising Material.” If it is informational, it is not necessary to include “Advertising Material,” but the blog should still contain the name of the firm or attorney and an address.

Lawyer listings. The basic guideline here is that the information contained in the listing cannot be false or misleading, so attorneys need to pay attention to the practice areas they list. Generally, there hasn’t been much guidance in Indiana, but other states have quite a lot to say about these listings. Some require disclaimers; some require certain wording be used when stating a lawyer’s inclusion on a listing; and others require that the selection process be posted.

Social media. This may still be the wild, Wild West, but the common advice was to keep your personal life professional. That no matter what you post on social media, you are still an attorney and must abide by the rules of professional conduct. If people are posting endorsements about you, they still must be truthful and not misleading, and it is your responsibility to comply even if you didn’t post it. Social media can be beneficial for marketing as well as being a useful tool to help your clients. Not everything is found in a legal publication or book. As lawyers, you have a responsibility to your clients and it should include tapping into social media for information or to advise clients about prudent use of social media.

And finally, why do you have to keep your files of advertising and promotional material for six years? Well, no one really knows, other than some things are slow to change.

The attorneys who made presentations at the program spent 45 minutes answering questions that the participants submitted. They ran out of time before they ran out of questions. Clearly, this is an area for continued discussion and debate. As the digital world continues to evolve at a rapid pace, there will probably continue to be more questions than answers. Stay tuned. #DigitalWorld.•


Dona Stohler of S2 Law Firm Strategies provides consulting services on business development and marketing for law firms. Stohler has more than a decade of experience in the legal services industry and is the past chair of the U.S. Law Firm Group marketing committee. She can be reached at dsstohler@s2lawfirmstrategies.com or through www.S2lawfirmstrategies.com. The opinions expressed are those of the author.


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