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Several states are revamping their ethics rules to comport with changes the American Bar Association called for three years ago, and some law firms may be surprised to find their advertisements running afoul of new requirements. The upshot of the changes for law firms, which each spend an estimated $200,000 annually on advertising, means that they may need to rework their marketing efforts to comply with the new rules. Whether designing their Web sites or contacting prospective clients by e-mail, firms most likely will discover that the rules of the advertising game are changing. While the revised ABA Rules of Professional Conduct address a wide spectrum of ethical issues, from conflicts of interest to multiple-jurisdictional practices, those focusing on lawyer ads deal with the explosion of advertising opportunities since the rules were first drafted 21 years ago. So far, nine states have approved revisions in some form to mirror modifications made in 2000 to the ABA’s rules. In addition, some 19 other states have issued reports on what changes they will make to their own ethics rules. The ABA rules are nonbinding and serve as guidelines for individual jurisdictions, none of which has adopted all of the ABA’s changes in full. But even for states that have not made any formal rule modifications, lawyer advertising is an issue. In Connecticut, for example, state Chief Justice William J. Sullivan at the Connecticut Bar Association’s annual meeting in June called for a special committee to look into what he described as “over the top” lawyer advertising. The judge said he was offended by the “misleading images” in television ads and the “very aggressive representation” by certain lawyers. Formation of the committee is under way, a court spokesman said last week. And in Florida, officials recently banned the use of recognized celebrities in law firms’ TV commercials. The state also prohibits the use of background noise — other than instrumental music — and requires the backdrop to be either a single color or rows of law books. Still other states have relaxed some of the rules. In Ohio, attorneys are discouraged — but not barred — from advertising through unsolicited e-mails to potential clients. In Iowa, attorneys cannot appear in their own ads; in Florida, however, lawyers now are not required to appear in their ads. With a mosaic of rules across the country, national law firms can be particularly vulnerable to violations, said Tom Spahn, a partner at Richmond, Va.-based McGuireWoods. A commercial litigator, he also lectures regularly on legal ethics. Some states, such as South Carolina, have become territorial with their local practices, Spahn said, and require that large firms’ national advertisements, which are usually print, comply with local rules. For big firms that rely on “image” advertisements, such as a ferocious lion or an illuminated light bulb, they could encounter trouble if their ads fail to list office locations, attorney contacts or other details, Spahn said. Boasting also can create problems for big firms. Those that say they are the “best,” “among the best” or “one of the most experienced” may be headed for trouble, especially in Mississippi, where the state bar association last year determined that such claims created an unjustified expectation of results. Attorney Micah Buchdahl, president of Moorestown, N.J.-based HTMLawyers, a legal marketing firm, cautions law firms about using their placement in a “best of” or “top list” rankings. While the inclusion in such lists, usually generated by business or trade publications, is not advertising, using the placement in the law firm’s own marketing materials can be problematic, he said. “The trouble with these ‘best of’ lawyer awards is if they’re put together for pure sales and marketing,” Buchdahl said. He said if it is “ridiculously blatant” that the lists or awards are solely an advertising vehicle for a publication, then firms should be wary about using them in their materials. NOTABLE CHANGES The most notable changes in the ABA’s lawyer advertising rules involve a broadening of what is considered advertising, Buchdahl said. For example, the ABA did away with enumerating different types of advertising forms-such as Web sites and directories-that were covered by the rules, and instead substituted a more general term, such as “electronic communication.” The idea was to replace an ever-growing laundry list of advertising forms with a more inclusive term. “People can’t claim, ‘I didn’t realize that,’ because it wasn’t on the list,” he said. Getting rid of enumerated lists means that more kinds of promotional activities may constitute advertising. Seminars, so-called advertorials and radio programs now arguably fall under the Rules of Professional Conduct. To determine whether they are advertisements, Buchdahl said that law firms should consider whether they paid for the “spot,” and whether it was designed to foster an attorney-client relationship. Other changes in the ABA rules include increasing requirements for law firms claiming specializations and removing language that required law firms to keep archives of old ads. As the rules are evolving, testimonials also are proving dicey, especially when combined with electronic advertising, as with attorney Rosemarie Arnold in Fort Lee, N.J. Her Web site includes a link to thank you notes sent by her clients. She also posts the notes on a bulletin board in her New Jersey office. While they comply with her state’s rules, the Ohio Supreme Court Board of Commissioners on Grievance and Discipline ruled that her site could be misleading. Arnold disagrees. “When they send these letters, it’s at their own volition,” she said, adding that she believes they give potential clients more information about her firm. Changes to the ABA rules and those implemented in other jurisdictions reflect a growing reliance on a “reasonable person” standard as opposed to a “per se” approach, Spahn said. The question then becomes whether a reasonable person would be misled by the advertisement. He said that under this standard, larger firm advertising in publications designed for in-house counsel fare better than firms advertising in yellow pages, for example. He added, however, that most bar associations are “politically correct, and don’t treat law firms differently.”

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