Common Issues in Marketing Compliance and Ways to Address Them
Marketing compliance means different things in different industries. The marketing of a law firm is impacted by a whole range of compliance issues including complying with:
The Rules of Professional Conduct relating to the legal profession, including client confidentiality and non-solicitation of clients rules;
Data Protection regulations;
Advertising Standards regulations; and
Interactive and Social Media regulations.
There are undoubtedly some other rules and regulations but these are the main ones that we deal with on a day to day basis in our legal marketing & communications department. How your marketing practice is affected will depend on the jurisdiction you are in, and your target markets. International law firms with global websites have to bear in mind that what they put on their website may be accessed by users in other countries.
Rules of Professional Conduct
Most jurisdictions will have a bar or law society that provides Rules of Professional Conduct. Law firms opening new international offices need to know these rules before they start their marketing. In the United States, the American Bar Association (ABA) has Model Rules for Professional Conduct and the Law Society of England & Wales has the Solicitors’ Code of Conduct. Such rules generally state that lawyers must not make false or misleading statements about themselves or the services they provide and this will impact the wording of the materials you produce to market your firm. For example, lawyers must not state that they are certified in a particular field unless they have obtained the relevant certification, e.g. “patent agent” . Biographies on websites and in marketing materials must comply with such rules so we need to have good communication with our colleagues in human resources so that they provide us with detailed information on each lawyer’s qualifications.
I work at Duane Morris & Selvam LLP, the Singapore office of Duane Morris LLP, a US-based international law firm and we have an internal set of marketing guidelines which follow the ABA’s Model Rules of Professional Conduct and set out the common legal ethics issues that arise in law firm marketing messages.
The following are the four most common issues:
1. Guarantees of Future Success
References to the results of cases or transactions must be presented carefully.
The ABA’s Model Rules of Professional Conduct provide that statements regarding “a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.”
To avoid creating “unjustified expectations” when describing the firm’s cases or transactions, there are three main guidelines:
Facts – cite as many appropriate facts as possible, for example, amount of the claim or size of the deal, court decisions, other details in order to distinguish the described case or transaction from others.
Opinion - when stating matters of opinion, make sure the opinion is clearly stated. For example, instead of “the case resulted in a very favorable settlement,” reword it as “the case resulted in a settlement our client found very favorable.” In this way, the “favorable” remark comes as an opinion of a satisfied client and not as the firm’s assessment of the outcome
Disclaimers – whenever cases or transactions are included whether in soft or hard copy, it is preferable to include a disclaimer such as “The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results.”
2. Suggestions of Improper Influence
Making a claim that could be construed as “we know people/we’re connected” must be presented carefully.
Rule 8.1(e) of the ABA’s Model Rules of Professional Conduct (and many correlating US state rules) reads: “It is professional misconduct for a lawyer to state or imply an ability to influence improperly a government agency or official . . .”
Each reference to some connection to, and/or experience with, a government agency, government official or regulatory body must be carefully worded so as not to imply special relationships with individuals that may have influence on the outcome of certain legal matters. Simply stating the fact that a lawyer previously worked at a particular regulatory body is fine so long as you do not state that they therefore have good connections with the leadership there.
3. Unsubstantiated Comparisons or Subjective Claims
Making a claim that the firm, a practice group, or an attorney is “the biggest, best, or number one” needs to be based on a reference in the media or a ranking bestowed by some independent organization.
Marketing materials should not make claims that are misleading about the quality of legal services or a lawyer’s credentials that are not capable of measurement or of verification. For example, instead of describing the practice as “the leading Private Equity practice” this should be reworded as “one of the leading” or “amongst the leading Private Equity practices”
4. Calling lawyers Specialists/Experts
Use of the terms “specialist” and “expert” when describing attorneys is prohibited in some states of America.
Lawyers should not be described as an expert in their field. Instead use wording to describe the level of their experience. For example, “George Jones has extensive experience in employment law”.
The legal profession generally includes a fundamental duty of client confidentiality. Accordingly, in marketing, we need to be very careful when we refer to any client matters and ensure that we have their permission to name them and to disclose the nature of the transaction or case. We have a deal database that has a record of whether we have the client’s permission to disclose the matter. We need to refer to this database before including any matters in marketing materials or pitches.
Another issue is the non-solicitation rule. Law firms are not permitted to go around cold calling and ambulance chasing. Our Chief Marketing Officer in Philadelphia gets 10 calls a day from vendors who want to sell us database marketing services, mailing lists etc. on the grounds that a B2B business like a law firm must need to reach out to thousands of random companies. Although we would indeed love to attract new business, our professional ethics and data protection rules prevent us from doing so.
Data privacy has become an important issue for marketing teams. Different jurisdictions have different rules so you need to follow what applies in your specific market but also in the markets where the recipient resides. E-newsletters and e-marketing must clearly provide an option to unsubscribe from the mailing list and many jurisdictions apply an opt-in approach to marketing meaning that you have to obtain explicit consent from the individual for specific marketing before sending them anything. We have created forms for our events that ask individuals if they would like to receive our newsletters and details of events by email and they need to tick the box and include their email in order to show consent to be added to our database. Our CRM system records the individuals and companies who have opted out and they are clearly indicated as “do not contact”. Regulators are imposing large fines for spammers and law firms certainly don’t want to appear to be breaking the law.
Some jurisdictions have a code regulating advertising so that relevant bodies can take action against misleading, harmful or offensive advertisements, sales promotions and direct marketing. Such regulations apply equally to law firm advertising and so although our material is unlikely to be harmful or offensive, it may well be deemed to be misleading if care is not taken to follow the professional code of conduct rules previously mentioned.
One of the ways in which a law firm can mislead the public is by claiming to have won awards accolades and honours but have actually paid for them. There are a large number of scammers who bombard law firms telling every lawyer that they have won this or that award and ask them to “sponsor” or otherwise pay for the accolade. No award worth winning should involve payment of any kind. Pay to play has become a real pain to marketers as the individual lawyers get very excited by the award and want to have them. Distinguishing between reputable awards and fake ones is time consuming and hard to do due to the sheer volume that enter our inboxes. To make life easier we have a list of awards worth winning. If the award is not on the list, it’s blacklisted and we press delete.
Social media is a great way to raise your firm’s profile but it can also be a Pandora’s box when it comes to individual employees writing their own posts and blogs. Having a clear social media policy for your staff will help to guide your lawyers on what they should and should not post on their LinkedIn, Twitter or similar pages. An example of the key guidelines for lawyers when using social media is as follows:
Do not provide legal advice or counsel, because doing so could create an attorney-client relationship, even if unintended.
Do not discuss Firm business or clients, unless the Firm authorizes you to do so.
Refrain from taking a position on a legal issue, which could create an issue conflict with a Firm client or could be contrary to positions the Firm is taking on behalf of a client.
Be aware that the rules of professional conduct apply to Internet postings, including the advertising and solicitation rules.
Do not post content that would potentially embarrass you or the Firm, or call into question your or the Firm’s reputation.
Use the same judgment in your Internet postings that you would in writing any formal letter. Post only content that you would be comfortable having the Firm, your colleagues, and the general public read, hear, or see.
When it comes to marketing compliance, an awareness of the issues raised above helps keep our marketing team on the right path and it would be particularly embarrassing for a law firm to get these things wrong if we are supposed to be the experts on it! Marketing compliance need not be a nightmare if you have the right checks and balances in place.
Head of Business Development, Asia Pacific
Duane Morris & Selvam LLP