Professional Growth
The Potential Pitfalls of Puffery
December 21, 2022
When does an attorney’s or law firm’s bold marketing scheme cross the line and become a potential ethics violation? The D.C. Bar webinar “I’m the Best Lawyer in Town and Other Things You Can’t Say (Ethically),” held December 14, sought to answer this question, examining some common pitfalls and overlooked opportunities.
“I would love to be able to tell you that I am, indeed, the best lawyer in town, but I’m not allowed to,” faculty speaker Daniel Schumack of the Schumack Law Firm said in his introduction to attendees. A member of the D.C. Bar Legal Ethics Committee who has represented clients in disciplinary proceedings, Schumack runs a practice focused on risk management issues for attorneys.
“Branding and marketing are not terms found within the ethics rules,” Schumack said, adding that each jurisdiction codifies its own ethics rules, many of them based on the American Bar Association’s Model Rules of Professional Conduct.
Because “marketing” and “branding” are not codified in the ethics rules, Schumack proposed his own definitions. “Marketing would be the things that you are doing, as a lawyer, to promote yourself and help to build brand recognition,” he said. “Brand recognition and branding are the impressions you make in people’s minds that help them remember you and induce them to want to come to you because of your reputation.”
While the rules do not include these terminologies, they do address advertising and solicitation, Schumack said. “Advertising covers anything you might do to market your law firm … whether it’s on the radio, on television, [or] on the internet,” he said. “If you send a postcard in the mail, [it is] going to be subject to the advertising rules. [If] you send a letter to somebody that’s not already your client, your purpose is to let them know that you’re a lawyer and you’re interested in helping them — that’s an advertisement.”
Solicitation is if that letter “is targeted to somebody who you know needs the kind of work that you are selling, and you present yourself as doing the kind of work that you need,” Schumack said.
Legal services advertisements in the D.C. area cannot be untruthful or misleading, though Maryland has additional disclosure and retention requirements, Schumack noted. Advertisements in Maryland must indicate the name of the lawyer sponsoring the ad, and attorneys must retain a record of all advertisements run in the past three years, he added.
“The District and Virginia don’t have those requirements,” Schumack said, “but it is a really good idea to follow those rules even if you aren’t required by your jurisdiction because it will help you if you ever get sued for malpractice.”
Solicitations have further restrictions, Schumack said, citing those imposed by the U.S. Federal Trade Commission, which places limitations on the place, time, and manner that targeted marketing can take place. Effectively a ban on “ambulance chasing,” the rules ensure that attorney marketing does not create undue pressure on consumers.
During the webinar, Schumack presented a series of hypotheticals designed to spotlight issues and guide attendees in parsing activities to determine whether they constitute an ethical violation. In the process, Schumack noted some specific situations that require attention to avoid unintentional violations.
Marketing that references attorney rating systems needs to be both thoughtfully crafted and mindfully maintained, he said. An attorney might fairly state that they are rated by Super Lawyers, but they may not describe themselves as a “super lawyer,” Schumack added, because the latter statement cannot be substantiated.
Schumack also cautioned that such accolades must be monitored for their continuing accuracy. “Super Lawyers comes out every year, and sometimes you’re not in next year’s publication. If the last time you were in Super Lawyers was in 2014, you can’t go around town saying, ‘I’m rated by Super Lawyers.’ You have to say, ‘I was in the 2014 edition.’”
While much of the presentation focused on potentially forbidden acts and statements, Schumack spotlighted instances in which attorneys are able to vigorously promote themselves, ending with some valuable advice about lawyer marketing and urging attendees to take steps to effectively and ethically brand themselves.
“Stop giving away free advertising and marketing to Apple and Google,” Schumack said. “If you’re using a Gmail account, stop using that for your business. Get yourself a domain name that’s tied to your name. Put a website on it and use the email that’s packaged with that domain name,” Schumack said.
