I. Marketing and Advertising

The elder and special needs law attorney:

1. Should consider marketing and advertising as an opportunity to educate the public and promote the profession of elder law and special needs planning.

In addition to promoting one’s practice, advertising and marketing can serve an educational function.  

While it is important to let the public know the types of services being offered by the firm, it is more important to do so in a manner that educates the public about substantive areas of elder and special needs law without using fear or high pressure communications to do so.

2. Ensures that no materially false or misleading information is communicated in connection with a seminar, presentation, marketing or any advertising activity.

Truthfulness in all communications to the public is a fundamental obligation of all attorneys.  The attorney is prohibited from making false or misleading statements in an attempt to attract clients.  A statement is false if any part of it is not true, and a statement is misleading if it creates a false impression. 

A “marketing communication” is any communication to any segment of the public that promotes or offers the services of the attorney.  It includes advertising, public relations, direct marketing,   websites, blogs, online profiles, and other forms of social media. Law firm brochures, seminars, and event announcements are marketing communications. Marketing communications should include clear and understandable disclaimers (See Model Rule 7.3: Solicitation of Clients, Section (c)).

Seminars, presentations, and similar activities may constitute marketing.  Attorneys who organize or speak at seminars and other forums should ensure that no false or misleading information is given and no pressure is exerted (including pressure to make an appointment with the attorney).

For example, to state that a particular course of action is appropriate for everyone, (i.e., one-size-fits-all or to exaggerate the benefits or minimize the detriments of a particular course of action or procedure is misleading. 

Attorneys should use accurate adjectives to describe a legal concept, procedure, program, or technique.  For example, advertisers often use words such as “new”, “unique”, and “secret” to stimulate interest in a product or service.  Any procedure or technique commonly used by attorneys is not secret or unique, and attorneys should not use these or similar terms.

Example: The client signs an authorization allowing the attorney to communicate directly with her son about the client’s legal matter. Even though the attorney may communicate primarily with the son, the attorney still should keep the client informed, where practical and appropriate, through means such as providing the client with copies of correspondence or documents. At the client’s direction, the attorney may retain confidential documents or send them to a third party if the client is unable to secure the documents.
3. Should communicate in a manner that considers the intended audience’s potential lack of sophistication or vulnerability to overly aggressive or fear-based marketing communications.

Whether a communication is misleading depends, in part, on the likely perceptions and vulnerabilities of the intended audience. 

For example, marketing techniques designed to pressure a potential client who is vulnerable or lacks financial sophistication, such as offering a "special discount" if the potential client engages the attorney immediately, are inappropriate.  The attorney never should attempt to instill fear or panic in a potential client or discourage the potential client from consulting with his or her spouse or other third party prior to making the financial commitment to retain the attorney. 

4. Communicates the attorney’s education and experience to distinguish the attorney’s practice and refrains from suggesting the attorney’s superiority to or advantage over other attorneys.

To avoid deceiving the public and potential clients, attorneys should make comparative statements based only on facts. Fact-based statements may result from third-party certification, licensing or evaluation, as permitted by state rules.

For example, claims that an attorney has more experience, a greater level of expertise, or a higher success rate than other attorneys require supporting empirical data.  

5. Uses endorsements and testimonials in a truthful, non-deceptive, and transparent manner.

When the opinion of a current or former client is used in a marketing communication, that opinion should be based on actual experience. Atypical results should be identified as such.        

If the attorney asks a person to communicate a testimonial or other expression of approval through a website, blog, or other media, the relationship between the attorney and that person should be disclosed in the communication. 

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