Connecticut lawyers have become increasingly confident that their advertisements comply with ethics rules.
Law firms submit their ads on a voluntary basis to determine if they are in compliance with Practice Book guidelines. The number of requests for advisory opinions has been steadily decreasing. Since 2007, when the state adopted its latest advertising rules, 61 requests for advisory opinions have been filed with the Statewide Grievance Committee.
The highest numbers of requests were made in 2009 – 16. But in the three years since, the average number has fallen to seven.
So far in 2013, only one law firm has requested an advisory opinion on a proposed ad. A firm that handles real estate transactions, whose name was not released, asked whether it could report on its website that "Your Property Is Our Focus." The grievance committee found the language did not rise to a level of suggesting a legal specialty, which is a type of claim that is prohibited, and the ad was approved.
"The firm submitted the request for us to look at that in an abundance of caution," Kerry O’Connell, an assistant bar counsel. "It makes sense to check with us first if you’re going to pay for an advertisement."
The lower number of requests means advertising rules are working as they were intended, David Atkins, a partner at Pullman & Comley. "It benefits the bar to have a procedure for regulators to give a firm a pre-publication seal of approval," said Atkins, who frequently advises law firm clients on ethics matters, including advertising decisions. "In any case in which a firm is uncertain whether its contemplated website or ad complies with ad rules, I typically advise what is obvious. Taking advantage of the [advisory opinion] rule is a no-brainer."
Guarding Against ‘Specialists’
When a lawyer wants to create an ad, they file a request for an opinion on whether the language will be in compliance with the Practice Book.
All advertisements, whether in print or on television, radio or on the web, are required to be filed with the grievance officials. Since the office randomly checks for compliance, getting pre-approval for an ad is seen as a low-cost way to avoid trouble, said Bill Jawitz, a law firm marketing consultant. "Most firms take these rules very seriously," he said.
There are other reasons the advisory opinions are attractive. The names of law firms that request advisory opinions are not a matter of public record, though the written decisions are. Getting a formal opinion protects the lawyer from any disciplinary action related to the ad. In the rare instance where a complaint is brought to the Statewide Grievance Committee and a disciplinary case leads to sanctioning, the lawyers are then named.
Under Practice Book rules, lawyers can’t claim they are specialists unless they have taken steps to be certified in a certain area of law. Firms are also required to list clear contact information for a lawyer who is licensed in the state. One of the first law firms to request an advisory opinion was the Waterbury firm of Yamin & Grant. It was told in 2007 that a proposed ad would not be permitted because it implied the lawyer or law firm is a specialist in a particular field of law.
The opinion itself did not suggest the firm had committed an ethical violation; it simply advised against using the ad, advice which the firm heeded. "I thought the process worked fine," Eric M. Grant, a partner at Yamin & Grant said. "The way I look at it, the opinion is there to help me out."
In 2012, the Statewide Grievance Committee issued eight advisory opinions, three of which were for ads judged to be not in compliance with Practice Book rules. In one of those instances, the committee found that a television ad for a debt collection firm was misleading on two levels.
First, state bar officials said they were troubled by a claim in the ad that clients could "get up to $1,000" back. While a disclaimer was featured in the ad indicating no outcome was guaranteed, "the disclaimer shown is in a much smaller size" than the $1,000 figure.
Second, bar officials said the "100 percent free" claim was an obvious case of being misleading. "The statement found throughout that the firm’s services are 100 percent free is misleading without further explanation that the attorneys will be paid by one side upon success in their claims," the opinion said.
In addition to issuing advisory opinions when asked, state officials randomly review law firm ads.
The Statewide Grievance Committee has just over 2,000 law firm advertisements in its database, about 1,600 of which are from websites. A team of three lawyers, including O’Connell, use a specially designed computer program to randomly pull about 100 advertisements a quarter for reviews.
The team is especially vigilant in searching the Internet for superlative-laden claims that can’t be substantiated. Lofty phrases like, "Raising the bar for client represenation," are off limits. It’s the committee’s task to make sure Connecticut’s lawyers understand that.
"They can’t speculate in the ads, they can’t use superlatives, they can’t say they’re the best in something," O’Connell said. "Once in a while, we’ll ask a law firm to substiate a claim they made. But usually, it’s something they will be quick to make changes to fix."
About 25 percent of the reviewed ads are found to have problems. That’s down substantially from 2008, when about half of the ads that were flagged.
If a lawyer has violated the Practice Book rules, they are alerted to make changes to the advertisement’s content. If the lawyer refuses to make the changes, they face a presentment for immediate disciplinary action. But that rarely happens.