While the internet and social media have made it easier than ever for lawyers to reach potential clients, they have also created a complex landscape of regulations that attorneys must carefully navigate. South Carolina, like many states, has specific rules governing attorney advertising to ensure ethical conduct and protect the public from misinformation. A misstep in this area can lead to disciplinary action, including cautions, reprimands, and even disbarment in extreme cases.
Understanding the History
The path to modern legal advertising has been a long one, marked by significant shifts in attitudes and regulations. Until the 1970s, lawyer advertising was illegal in the United States. Through a series of legal challenges, the courts, including the U.S. Supreme Court, recognized attorney advertising as a form of commercial speech protected by the First Amendment.
However, this recognition came with the caveat that states could regulate this speech to maintain ethical standards within the legal profession. This led to the development of state-specific rules governing attorney advertising, creating a complex web of regulations that can be challenging for attorneys to navigate, particularly for those working with marketing agencies based in other states.
Common Pitfalls
Barbara Seymour, an experienced legal ethics attorney in South Carolina, highlights some common pitfalls attorneys face when it comes to advertising. Many lawyers operate under the assumption that their personal judgment regarding ethical advertising is sufficient, often relying on outdated information from law school or mimicking the practices of other successful attorneys. This can be problematic, as South Carolina has unique modifications to the ABA Model Rules, particularly in the area of legal advertising.
Another challenge is the complaint-driven nature of South Carolina's disciplinary system. The Office of Disciplinary Counsel does not actively seek out advertising violations. Instead, they investigate complaints filed by the public, other attorneys, or judges. This means that much of the non-compliant advertising remains unchecked until a complaint is lodged.
Key Rules for South Carolina
1. Avoid Misleading Language
One of the most important rules for legal advertising is to avoid making false or misleading statements about the attorney's services. This includes misrepresenting facts or the law or omitting crucial information.
2. Predominantly Informational Content
Advertisements should prioritize factual information over attention-grabbing techniques. This means focusing on the lawyer's qualifications, experience, and areas of practice, rather than flashy visuals or emotional appeals.
3. Restrictions on Specialization Claims
Attorneys in South Carolina cannot use the terms "certified," "specialist," "expert," or "authority" unless they have been certified as specialists by the South Carolina Supreme Court or an approved organization.
4. Testimonials and Past Results
Testimonials can be a powerful marketing tool, but they must be genuine and not misleading. Paying for testimonials is strictly prohibited. Additionally, attorneys cannot promise specific outcomes based on past successes. While highlighting successful cases is permissible, advertisements must state that past results do not guarantee future outcomes.
5. Clear Disclosures and Disclaimers
All advertisements must include the full name of at least one responsible attorney and the attorney's physical office address, prominently displayed in a clear and conspicuous manner. This applies to all platforms, including websites, social media, and print materials.
6. Direct Solicitation
Direct solicitation of potential clients who are known to need legal services for a specific matter is prohibited. This includes in-person, telephone, and electronic solicitations. However, general advertising to the public and responding to inquiries are permitted.
Social Media Marketing and Emerging Platforms
The emergence of social media and digital marketing has added another layer of complexity to legal advertising. These platforms present unique challenges due to their interactive nature and limited space for disclaimers.
Attorneys using social media for marketing should be mindful of:
Content Control: Lawyers are ethically responsible for the content they post and share, but they are also responsible for content posted by others on their pages if they choose to allow comments. It's generally recommended to disable comments on social media platforms or have a dedicated team to monitor and moderate comments to prevent the dissemination of misleading or unethical information.
Recordkeeping: Maintaining records of social media posts and advertisements is crucial for demonstrating compliance with the two-year recordkeeping rule.
Disclaimers and Disclosures: Ensuring that all required disclaimers and disclosures, including the responsible attorney's name and office address, are prominently displayed, can be challenging on platforms with limited character counts or space constraints.
Practical Advice for South Carolina Attorneys
Seymour emphasizes the importance of seeking expert advice from an attorney specializing in legal ethics and professional responsibility, particularly for firms engaging in significant advertising campaigns. This proactive approach can save attorneys time, money, and potential disciplinary action.
Here are some additional tips for navigating legal advertising in South Carolina:
Stay Updated: Regularly review the South Carolina Rules of Professional Conduct and any relevant ethics opinions to stay informed about changes and updates.
Continuing Education: Attend CLE courses specifically focused on legal advertising and ethics in South Carolina.
Engage with the Bar: Consult with the South Carolina Bar for guidance on specific questions or concerns regarding advertising practices.
By understanding the rules and seeking expert advice when needed, South Carolina attorneys can leverage the power of advertising to grow their practices ethically and effectively.