After a year of debate and public comment, on March 27, 2019, the Michigan Supreme Court issued an order amending MRPC 7.2, a legal ethics rule addressing lawyer advertising. The amendment did not change the rule’s existing language, but added a new provision – Paragraph D – that took effect on May 1, 2019:
For purposes of media advertising, services of a lawyer or law firm that are advertised under the heading of a phone number, web address, icon, or trade name shall identify the name and contact information of at least one lawyer responsible for the content of the advertisement. The identification shall appear on or in the advertisement itself; or, if that is not practical due to space limitations, the identification shall be prominently displayed on the home page of the law firm’s website and any other website used by the law firm for advertising purposes.
Both of the paragraph’s two sentences is immediately problematic for many law firms. Rain BDM’s John Reed serves on the State Bar of Michigan’s newly formed Task Force on the Ethics and Regulation of Legal Services Marketing and offers these interpretations and recommendations for complying with Rule 7.2(d).
Why This Rule Change?
The rule takes aim at “anonymous” advertisers – law firms (in Michigan and other jurisdictions), networks, lead generation services, and marketing companies – that either don’t identify the name of the law firm or any lawyer, or that use a trade name that fails to identify a law firm or lawyer. The amendment seeks to ensure that any individual who responds to an advertisement promoting legal services knows the lawyer or lawyers that authorized or paid for the ad. While the rule change seeks to pull back the curtain to expose the lawyers behind an advertisement, it unfortunately imposes a burden on other law firms that don’t engage in such subterfuge.
Paragraph (d) neither delineates the communication channels that fall under “media” nor defines the nature and substance of “advertising.” But the mention of “services” implies that qualifying “media advertising” is commercial speech that promotes a lawyer’s or law firm’s professional counsel to engage new clients
Because the rule doesn’t define “services,” “media advertising” should be construed broadly to include all promotional messages in print and digital publications and on broadcast radio and television, cable television, satellite radio, online search engines, social media, and other platforms. Similarly, lawyers and law firms should take a conservative approach and include in any advertisement the “name and contact information of at least one lawyer” to comply with the rule.
Consider, however, a sponsorship where only the name of the lawyer or law firm appears on a banner at an event, or a display ad in an awards program that congratulates an honoree but does not mention the lawyer or firm’s services. Absent any promotion of “services,” there is arguably no requirement to include the name and contact information of a responsible attorney.
“Space Limitations” and “Home Page”
Google, Bing, and other search engines usually limit the number of characters displayed in pay-per-click ads, as do Facebook, Twitter, and other paid social media platforms. Lawyers and law firms that conduct such ad campaigns want viewers to click on an embedded link to redirect them to websites or landing pages for further information, complete a web form, engage in an online chat session, or call the firm’s phone number.
Acknowledging the impracticality of including a responsible lawyer’s name and contact info within a limited character set, the amendment mandates that the identification appear “on the home page of the law firm’s website and any other website used by the law firm for advertising purposes.” But consider the unintended consequences of this requirement:
- What if a law firm – particularly a large firm – runs multiple Google Ads campaigns for its practice areas, each group comprising a different set of lawyers? Must the firm list on its website’s home page the name and contact info of a different lawyer “behind” each ad?
- Many law firms pay to “boost” blog posts to target audiences on LinkedIn and Facebook, so a viewer who clicks on the boosted post is taken directly to the blog post and not the home page. If the blog post shows the responsible attorney as the author with his or her contact info, must the firm also list the attorney on its home page?
- Most law firms have websites featuring attorney biographies that are readily accessible from the menu and navigation prompts. (It would be “marketing malpractice” for a firm to not include lawyer profiles as research shows those pages are the most viewed content on law firm websites). Must the firm also list the name and contact info of at least one attorney on the home page? Who decides which attorney or attorneys will appear on the home page? Will attorneys rotate on and off the home page, and if so, how frequently?
There is a real cost of compliance here. Some law firms spend considerable amounts of money for custom-designed websites, and recoding and reconfiguring home pages to “prominently display” lawyers’ identifying information can be expensive.
If you have questions about how Rule 7.2(d)’s impact on your current advertising or any aspect of your marketing activities, please contact us – we’ll be happy to help you abide by the rule.