Ethics and the Law: A Sucker Born Every Minute - By Robert Pelton

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Wednesday, February 27th, 2019

We live in a changing society. Some changes are good and some are bad. As lawyers, especially those of us who have been around a while, we have seen major changes. In the beginning there were no cell phones, no fax machines, no computers, no email, no text messages, no twitter, Instagram, snapchat, Facebook, power point, skype, or LAWYER ADVERTISING (except having a listing in the phone book). The first outrageous ad I remember was for Cal Worthington, used car dealer in California, riding an elephant trying to get attention for his car lot. It worked just like it worked for P.T. Barnum, who ran the Ringling Bros. and Barnum & Bailey Circus. Supposedly he told people there is a sucker born every minute. He had carnival barkers luring people in to see animals born with two heads, shrunken heads from the Amazon, bearded women, scantily dressed women dancing to flute music. Lawyer advertising appeared in 1989. In 1990–91, new disciplinary rules were established.

Joseph Connors told me about a lawyer in the Rio Grande Valley who put up a billboard advertising his services but did not get approved. Someone ratted the lawyer out. The billboard came down, and the lawyer had to face consequences: numerous CLE hours on ethics and pay significant amount of money to Bar. If ads are approved by the State Bar,then no matter how repugnant they are we have no choice but to accept and realize there is a Sucker Born Every Minute.

Attorney Advertising Laws in Texas

The Texas Disciplinary Rules of Professional Conduct requires lawyers to file a copy of most public media advertisements and solicitation communications with the Advertising Review Committee prior to dissemination, or concurrently. Attorney advertising laws in Texas are quite restrictive, but as a solo or small firm, you can stay in full compliance while still having effective advertising campaigns. Below are some of the major laws regarding attorney advertising in Texas:

  • A lawyer cannot advertise in the public media by stating that he or she is a specialist, except for Patent attorneys, Trademark attorneys, and a few other exceptions.
  • A lawyer that advertises in the public media must publish or broadcast the name of at least one attorney who is responsible for the content.
  • In the case of an infomercial or similar format, there must be a statement that the presentation is an advertisement both verbal and in writing at its outset and conclusion.
  • In public media advertisements, any individual who portrays a lawyer whose services or whose firm’s services are being advertised, or who narrates an ad as if he or she were a lawyer, should be one or more of the lawyers whose services are being advertised.
  • No mottos, slogans, or jingles that are false or misleading may be used in any ad in the public media.
  • Advertising on the internet must display specific statements and disclosures as mandated by the Texas Disciplinary Rules of Professional Conduct.
  • A lawyer cannot send, deliver, transmit, or knowingly permit or cause another person to send, deliver, or transmit a written, audio, audiovisual, digital media, recorded phone message, or other electronic communication to prospective clients for the purpose of obtaining professional employment on behalf of any lawyer or law firm if the communication involves coercion, duress, fraud, intimidation, harassment, etc.
  • With a few exceptions, any written, electronic, or digital so­lici­tation communication to prospective clients for the pur­pose of obtaining professional employment must plainly be marked “ADVERTISEMENT” on its first page, in a color that contrasts sharply with the background, and in a font that is larger than the one used in the body of the communication.

Advertising Review

The Advertising Review application fee is $100.

Our Advertising Review Department is responsible for reviewing attorney and law firm advertisements and solicitation communications as required by Part VII of the Texas Disciplinary Rules of Professional Conduct.

Time Frames

Advertisements and Solicitation Communications can be filed either prior to dissemination OR concurrent with dissemination.

  • Preapproval review time is 25 days
  • Filing concurrent review time is 40 days

Deciphering the State Bar of Texas Advertising Rules

Texas Disciplinary Rules of Professional Conduct

For more than 20 years, the State Bar of Texas advertising rules have governed lawyer advertising, including print and electronic ads, websites, brochures, and practically any communication about a lawyer’s legal services that reaches the public. Despite two decades of regulation, Texas lawyers and law firms still have questions about exactly what is and isn’t allowed, and the potential impact for violations.

That lack of familiarity can lead to a firm or an individual lawyer having their ad, website, etc., labeled as “noncompliant” by the State Bar of Texas Advertising Review Department, which reviews lawyer advertising for violations under the Texas Disciplinary Rules of Professional Conduct. Those who fail to remedy noncompliant communications may be the subject of an official complaint filed with the Bar’s Chief Disciplinary Counsel.

The prospect of defending a disciplinary complaint—not to mention the possibility of coming out on the losing end—undoubtedly contributes to the thinking of those who abide by the rules. However, whether based on ignorance or arrogance, some attorneys and firms continue to operate outside the lines even with the unenviable prospect of being caught looming on the horizon

Common mistakes and/or violations when determining whether an ad is compliant

This information is from the Ad Review Committee.

While we review each submission individually and no two are the same, there are several things that seem to appear over and over again.

Failing to file an advertisement or solicitation is a common problem that violates TDRPC Rule 7.07. Although the State Bar has been regulating lawyer advertising for more than two decades, we still see instances where a lawyer or firm simply fails to submit an ad as required under the rules.

Another issue we see regularly is the use of trade names, which is prohibited under TDRPC Rule 7.01. It’s important to know that this rule is not applicable to descriptive URLs (e.g., insurancecoveragelawyer.com, etc.). Many firms do not take the time to come up with a descriptive URL. Now that they are included on firm letterhead and business cards—provided they are not false, misleading or deceptive—descriptive URLS can help people remember you.

We also see instances where ads and websites violate Rule 7.02(a)(2), which covers past case successes and results. If you list a dollar amount in your ad, on your website, or in any other public communication, then it must include the actual amount received by your client. If you list an overall recovery amount, the same rule requires that you also list the amount of attorney’s fees and litigation expenses that were withheld from whatever your client received.

One final issue that appears is another violation of Rule 7.02 based on how professional honors and accolades are listed. If you have been selected to Texas Super Lawyers, Best Lawyers in America, or other similar recognition, then you must also include the name of the organization that is presenting the award and the year or years you were selected. Putting a Super Lawyers logo on your website or in an advertisement without this information is a violation that we point out regularly.

What types of penalties are in place for those who fail to file their ads with the Ad Review Committee or those who produce ads that violate the ad rules?

The financial penalty for failing to file an ad or solicitation communication is essentially $250 since the normal filing fee is $100 and the non-filer fee is $350. Those who fail to file will receive a non-filer letter from the ad review staff. If they don’t respond to that letter as required, then they can be referred by the Advertising Review Committee to the State Bar’s Chief Disciplinary Counsel, which conducts its own independent investigation before determining the next course of action.

There are other ways that you may be referred to the State Bar’s Chief Disciplinary Counsel if your communication violates the TDRPC. While that doesn’t happen very often, we have seen instances where it has been necessary.

Jack Zimmermann, Joseph Connors, Michael Mowla, Keith Hampton, Robyn Harlin, Joe Pelton, Sharon Bass, and I all discussed some of these repulsive ads, but if they’re approved by the State Bar nothing can be done.