This June marks 47 years since the U.S. Supreme Court decided Bates v. State Bar of Arizona, determining that commercial speech merited First Amendment protection. The decision allowed attorneys to supply consumers with valuable information about the availability and cost of legal services — in other words, advertising.

The ABA drafted and then adopted the Model Rules of Professional Conduct by 1983, and state Supreme Courts followed suit, adopting the ABA rules but not always identically. States modified language to preserve the integrity of their own manner of practicing law, or added aspirational rules, and with those additions the rule names and numbers no longer aligned with the ABA's Rule. Adding to the confusion were comments and opinions added to the rules, meant to assist with rule interpretations but often adding layers of information that lacked clarity.

If legal marketing professionals are looking for the absolutely clear and consistent rules about attorney advertising that every firm can or should follow, know that the search is futile because the states not only modified the rules but called them by other names including codes, guidelines, standards, oaths, principles, pillars or tenets.

States Rules May Go Far Beyond the ABA Model Rules

As a marketing and PR agency with law firm clients across the country, we see that several states' rules about attorney advertising are strikingly strict, and not necessarily consistent with one another, which can be problematic for multi-state law firms. Some states' rules go far beyond the ABA rules, not only with state-specific mandates for language and disclaimers, but also with proximity and font size directions for website content, or required approvals on ads, restrictions on the use of awards badges, or limits to the types of accolades attorneys can promote. Talented creatives may be tasked with the challenge of including long disclaimers and other language in ads to keep compliant.

The rules run the gamut in terms of the types of advertising campaigns they restrict, from website content to printed ads to sponsorship ads, billboards, signage, and so on. Law firms and law firm marketing departments must comply with ABA and state rules; in some instances, a law firm will receive a notice of noncompliance, which can be an expensive, immediate and time-consuming project that must be prioritized and certified with the committee or governing body overseeing attorney advertising in their states.

For example, in Louisiana, certain advertisements and written communications must comply with LA State Bar Rule 7.7, which requires lawyers to include a filing number assigned and provided by the Louisiana State Bar Association at the time of filing; to ensure compliance, legal marketers have to read through definitions and exemptions to the rule.

In Missouri, attorney marketing materials must include the disclosure, “The choice of a lawyer is an important decision and should not be based solely upon advertisements.” This placement of this disclosure must be “conspicuous.”

New Jersey's Increased Enforcement of Rule Compliance

For firms based in New Jersey or those based elsewhere but with offices in New Jersey, New Jersey’s Rules of Professional Conduct apply and are monitored by the Committee on Attorney Advertising as appointed by the Supreme Court of New Jersey. The committee’s role is admirable: to educate the Bar as to the ethical limitations of advertising, and to balance attorney promotion with the need to avoid misleading the public. Compliance is particularly detailed when promoting rankings, case results, testimonials and other content. Lately, law firms in New Jersey have received lengthy noncompliance letters from the committee, requiring that websites be fixed within a short timeframe.

Beyond two disclaimers that most New Jersey law firms know — “No aspect of this advertisement has been approved by the Supreme Court of New Jersey,” and "Results may vary depending on your particular facts and legal circumstances” — there are very specific rules about legal awards and recognitions that have a big impact on the content of attorney biographies, press releases, website pages, advertisements, and more.

New Jersey's Position on Rankings Methodologies

For example, in New Jersey, law firms can only promote rankings that do a bona fide, rigorous and independent inquiry into the fitness and qualifications of a ranked lawyer. Many rankings do not meet this standard and therefore cannot be promoted by the firm or the lawyer. Lawyers inevitably get frustrated when the marketing department removes certain accolades from their biographies, but it has to be done to be compliant.

Also in New Jersey, every reference to an award must include a description of the organization and its methodology, and that language must be in "close proximity" to the listed ranking along with the “No aspect of this advertisement has been approved by the Supreme Court of New Jersey” disclaimer.

Even though New Jersey approves the promotion of Best Lawyers® and Super Lawyers® because of their bona fide methodologies, legal marketers have yet another hurdle to pass. The publishers of these awards also require compliance with promotional language. It’s important to check biography narratives, press releases, and rankings listings to correct any noncompliant language, replacing phrasing such as “she is a best lawyer” or “he is a super lawyer” with “she is included in the Best Lawyers list.”

With regard to client testimonials, some states can use Chambers quotes (which are anonymous), whereas New Jersey forbids the use of Chambers quotes altogether. To pass muster in New Jersey with a client testimonial, it must include one of four versions of the client's name, and the attorney advertising committee may request proof that the testimonial was from a client or former client.

Two other important content areas are case results and client testimonials, and the rules vary across states so it's advisable to read the rules and opinions that apply to your offices. For some firms, adding the disclaimer of “Results may vary depending on your particular facts and legal circumstance,” is required. The tricky part of being compliant is seeking out where results may be mentioned, and that means digging into bio narratives, practice area descriptions, representative matters, verdicts and settlements, case studies, firm news, and other firm descriptions to make sure that disclaimer language is visible.

This article originally appeared in the June 2024 issue of ALM's Law Journal Newsletters Marketing the Law Firm.