Things About Attorney Advertising That I Have Learned (So Far)

By Kerry D. Smith

McMurry & Livingston, PLLC

Kerry Smith is a member of the Kentucky Bar Association Attorneys’ Advertising Commission

Here are ten things that I have learned plus one personal observation that I have made while serving on the KBA Attorneys’ Advertising Commission:

1.         Importance of the TIAA.  The words “THIS IS AN ADVERTISEMENT” must be shown prominently in every ad.  In radio ads the TIAA must be before/after the body of the ad.  In television ads < 60 seconds the TIAA must be on screen as long as the lawyer’s/firm’s name is on screen (in ads > 60 seconds the TIAA must be on screen the entire time).  On websites the TIAA must be on the first screen of every page without scrolling.  See Kentucky Rules of Supreme Court 3.130 (Rule 7.25).

2.         Avoid using “expert” and similar words.  The words expert, specialist, certified, or authority (or variations thereof) cannot be used except for certain exceptions (patent, admiralty, approved state or national organizations, etc.).  See Rule 7.40.

3.         Comparisons to other attorneys/law firms.  Statements making comparisons (“I’m the best lawyer in town.” OR “We’re the best firm in the county.”) are not permitted unless they use objective criteria (example: “Our firm is rated AV Preeminent® in the Martindale-Hubbell® Peer Review Ratings™.”).  See Rule 7.15(c).

4.         Fee/Expense disclaimers.  If a fee is advertised then the work must be performed for the amount advertised.  If court costs are the responsibility of the client, including contingency fee matters (example: “no fee unless we win your case”), then the ad must state: “COURT COSTS AND CASE EXPENSES WILL BE THE RESPONSIBILITY OF THE CLIENT.  See Rule 7.04.

5.         Track record regarding verdict results and adequate disclaimer.  If you include a track record about results obtained then you must include complete information (example: describing a large jury verdict but failing to mention that it was overturned/settled on appeal).  See KBA AAC Reg. 1-D.

6.         Location must be mentioned. Each advertisement must contain the city, town or county of a bona fide location of the lawyer’s office.  See KBA AAC Reg. 1.C.

7.         Facebook.  The current position of the KBA Attorneys’ Advertising Commission is that you can have a Facebook account for your law practice, but make sure to include “THIS IS AN ADVERTISEMENT” on the “About” page.  Remember to submit your Facebook site to the AAC just like any other advertisement.  And make sure that your posts comply with the Rules (nothing false, misleading, improper comparisons, etc.).

8.         Blog.  Web logs (but not web sites) are exempt.  But make sure that it is not a “blog in name only.”  The rules define web logs as “journals on the internet that permit real time communication and exchanges on topics of general interest in legal issues, provided there is no reference to an offer by the lawyer to render legal services.”  Rule 7.02(1)(j) (emphasis added).

9.         Advisory opinions.  An advisory opinion may be sought > 30 days in advance of publication (plus fee).  See Rule 7.06.

10.       Penalties for non-compliance.  Violations may be dealt with by the KBA AAC administratively.  Intentional violations (publication after receiving non-compliance notice, manifest indifference to rules, pattern of disregard) may be referred to the Inquiry Commission.  See Rule 7.07.  Legal fees may be forfeited for illegal/unethical solicitation.  See Rule 7.10.

11.       Personal observation.  How we choose to advertise affects the integrity of our entire profession.  A good description of this point is in the preamble to the ABA Aspirational Goals for Lawyer Advertising:

[W]hen advertising though not false, misleading or deceptive degenerates into undignified and unprofessional presentations, the public is not served, the lawyer who advertised does not benefit and the image of the judicial system may be harmed.  Accordingly, lawyer advertising should exemplify the inherent dignity and professionalism of the legal community. Dignified lawyer advertising tends to inspire public confidence in the professional competence and ability of lawyers and portrays the commitment of lawyers to serve clients’ legal needs in accordance with the ethics and public service tradition of a learned profession.