Anyone coming to the world of lawyer marketing from a consumer product background would be stunned by the state bar rules governing lawyer advertising. The vestigial remains of the courtly days before lawyer advertising, these rules are typically a mix of picayune detail and over-expansive reach, an attempt at lawyer exceptionalism in our 21st century media landscape.

Do these rules do any good? I’m unaware of any empirical data showing – or even suggesting – that attorney advertising rules actually protect consumers (the one exception being limits on in-person solicitation immediately following accidents). The Federal Trade Commission, which knows a thing or two about advertising practices and consumer harm, has long advocated that bars loosen or eliminate their advertising restrictions. What’s more, these rules are supposed to be interpreted within the parameters of the commercial speech doctrine, which significantly limits the ability of the state to restrict non-deceptive advertising.

Within this framework of questionable utility and limited constitutionality, one would expect that state bars would tread carefully when it comes to their advertising rules. Instead, some states lean heavily into their rules, enforcing them as expansively as possible. The latest example: Connecticut, which has laid the hammer down on 5 lawyers who participated in the Total Bankruptcy advertising site (thanks, Ben Glass, for posting the memo).

What did these scofflaws do? They paid Total Bankruptcy to send potential customers their way. In any other field, this type of behavior is called “advertising.” In the eyes of Connecticut’s disciplinary counsel, it’s “felonious.”

The Bar has fixated on its prohibition of unapproved and unregulated “lawyer referral services,” which it considers Total Bankruptcy to be. Could there be issues with such services? Sure, depending on the facts. If consumers are being deceived or misled, that’s a problem. But the bars need to proceed with caution, not rabidly pursue disciplinary action and suggest that attorneys using such a service should be charged as felons. Consider:

1. Are consumers being harmed? Connecticut’s restrictions aren’t constitutional if they aren’t narrowly tailored to address a substantial government interest. Is the ban on “unapproved lawyer referral services” intended to protect the public or preserve the local bar’s sinecure in referring clients to lawyers, often taking a cut of legal fees in the process? While there may be an important consumer protection element in regulating organizations that purport to perform customized evaluations and selective referrals, the bar needs to carefully consider whether a marketing vehicle is actually making that claim, or whether it simply “smells like” a lawyer referral service.

2. Is state-sanctioned lawyer referral really the only way to go? As Carolyn Elefant points out, the “official” lawyer referral services aren’t for everyone. While they can offer a wonderful service, many consumers don’t want or need the handholding involved, and don’t want to pay a $35 fee to get an initial consultation that would be free elsewhere. Many consumers are also savvy enough to know that they will need to do their own diligence on an attorney’s qualifications and “fit” for them, regardless of whether the attorney is recommended by a friend, the state lawyer referral service, or a service like Total Bankruptcy.

3. Why does Connecticut stretch the law? The Connecticut memo makes much of historical prohibitions on “runners” being used to drum up business, and equates Total Bankruptcy to a “runner.” The problem is that Total Bankruptcy – and any online service – doesn’t remotely fall into this category. Runners are a form of in-person solicitation, which is subject to far more restrictions than advertising, for obvious reasons. Adding insult (and offense) to injury, the memo uses this bogus argument as its linchpin for threatening the “Total Bankruptcy 5” with felony convictions.

Ultimately, in the absence of consumer harm – and, indeed, a crystal-clear fit within the law’s prohibitions – states should never find that lawyer marketing practices violate their rules. Any other result is constitutionally infirm. While the bar owes it to the public and its members to carefully evaluate marketing practices that may mislead consumers, it must do so carefully and avoid rushing to judgment or overreaching. Let’s hope that when Connecticut’s Statewide Grievance Committee holds its hearing on this matter next week it does just that.

This entry was posted on Thursday, November 5th, 2009 at 11:12 am by Josh King, VP of Business Development and General Counsel and is filed under Josh King Posts. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.