Law firms must follow certain standards when advertising, including the infamous Morgan & Morgan
Lawyers, like other businesses, are allowed to advertise on all types of platforms. Years ago, attorneys primarily advertised in the local yellow pages or on local television stations. Today, you’re just as likely to see an attorney advertisement online or hear an attorney advertisement on a podcast.
The American Bar Association (ABA) Rules of Professional Conduct were written in 1983. The rules address the professional responsibilities of lawyers when it comes to advertising.
Although the ABA Rules aren’t legally binding, all fifty states have adopted some version of the ABA Rules. Attorneys who violate these rules face discipline from state regulators (typically state bar associations).
In this article, we’ll take a look at some of the most common rules involving attorney advertising. We’ll also take a look at Morgan & Morgan, a personal injury law firm whose advertisements have received national attention.
False or misleading claims
Attorneys have an ethical obligation to avoid making false or misleading claims.
Generally speaking, a communication is false or misleading if it:
- Contains a material misrepresentation of fact or law, or
- Omits a fact necessary to make the statement not materially misleading.
For example, an attorney who has lost a case during their career cannot claim in a television advertisement that they’ve never lost a case, nor can they suggest as much by referring to themselves as an “unbeatable attorney.”
Full text of ABA Rule 7.1
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
Practice and specialization
Lawyers must be careful about how they describe themselves to the general public.
It’s perfectly acceptable for a lawyer to say that they practice in a particular area or even focus on a particular area of law. However, a lawyer is prohibited from claiming that they are “certified as a specialist” in a particular field of law unless the lawyer has actually been certified by an organization that’s been accredited by the ABA. This type of certification is reserved for attorneys who have passed a rigorous set of requirements.
For example, Enjuris partner Robert Wisniewski is a certified workers’ compensation specialist by the Arizona Board of Legal Specialization. Robert has focused his practice exclusively on workers’ compensation for more than 40 years. You can learn more about Robert in an exclusive interview we conducted with him.
Full text of ABA Rule 7.2(c)
A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or the District of Columbia or a U.S. Territory or that has been accredited by the American Bar Association; and
(2) the name of the certifying organization is clearly identified in the communication.
Personal injury lawyers have long been described as “ambulance chasers”. The term refers to the stereotype of personal injury attorneys following ambulances to emergency rooms in order to find clients.
Like many stereotypes, the stereotype of an attorney showing up at the scene of a tragedy to solicit clients is not accurate.
Attorneys are strictly prohibited from approaching individuals in-person to solicit professional employment.
Full text of ABA Rule 7.3
A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a:
(2) person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; or
(3) person who routinely uses for business purposes the type of legal services offered by the lawyer.
A lawyer shall not solicit professional employment even when not otherwise prohibited by [the above paragraph] if:
(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.This Rule does not prohibit communications authorized by law or ordered by a court or other tribunal.
If someone refers a lawyer to you, they’re probably doing so based on the capabilities of the lawyer. This is because lawyers are prohibited from compensating people for recommending their services in most situations.
To put it another way, a lawyer cannot pay a person to recommend them to a potential client.
Full text of ABA Rule 7.2
A lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service;
(3) pay for a law practice in accordance with Rule 1.17;
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if: (i) the reciprocal referral agreement is not exclusive; and (ii) the client is informed of the existence and nature of the agreement; and
(5) give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.
Morgan & Morgan’s famous (and infamous) advertisements
If you’ve spent any time in Florida, you’ve probably seen a Morgan & Morgan advertisement.
Founded in 1998 by John Morgan, the personal injury law firm has more than 700 attorneys in more than 50 offices located in Florida and 16 other states.
Morgan & Morgan has become famous for its advertisements, which include giant billboards that are intended to look vandalized and an annual winter billboard advertising legal services if your grandma got run over by a reindeer.
“Our advertising strategy is simple: grow or die,” said Morgan & Morgan’s communications director.
Unfortunately, some of these advertisements have attracted the wrong kind of attention.
A Philadelphia-based law firm sued Morgan & Morgan in 2017, claiming their ads were misleading potential clients. The lawsuit alleged that Morgan & Morgan ran misleading ads implying that it was actively litigating cases in Pennsylvania when, in reality, the firm had only one Philadelphia lawyer who had almost no personal injury experience. The case was ultimately settled.
In another incident, members of the Georgia Defense Lawyers Association took issue with a Morgan & Morgan television commercial in which partner Matt Morgan said:
I’m going to tell you something the insurance companies don’t want you to know. In almost all of our car crash cases, the person who caused the crash has insurance, but the jury is never allowed to know. I don’t think that’s fair. You might feel sorry for the at-fault driver because you think they will have to pay, but the insurance company pays for that driver’s lawyers, court costs and the verdict. Spread the word. Now you know.
The issue, the members believed, was that Matt Morgan was giving out information legally required to be withheld from jurors when they sit on a personal injury trial.
Although the advertisement may have rubbed some people the wrong way, it likely didn’t violate any ethical rules. The law, after all, only applies to information given to a particular jury in a particular case—not the general public.