Lawyer Advertising Ethics Warning

I frequently receive examples of lawyer advertising, and have recently been receiving an interesting e-mail newsletter. Something about that e-newsletter always struck me as wrong, but people often do a lot of strange things with their marketing, so I never really paid too much attention.

But over the past few weeks, I’ve seen a disturbing trend. Because I believe this marketing approach violates the ABA’s Model Code regarding lawyer communications, I want to warn you – should you be solicited to use this type of advertising in your own practice.

It’s storytelling.

Jane was one of five children.  Her mother, Ellen, was 87 and had been ailing for some time. Jane’s oldest brother, Bob, had been given a power of attorney by his mother to act for her. Under the power of attorney, Bob had broad powers. He also had access to all of Ellen’s accounts. The rest of the family had no idea that Bob was using his access to steal his mother’s money.

What is wrong with storytelling? There are at least three things wrong with this marketing approach.

1.       First and foremost, to be blunt, it’s a lie, which is just wrong.

2.       Second, it’s an ethics violation. The Model Code prohibits advertising that is “false or misleading.”

Here is the actual Rule 7.1 of the Model Code: A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. (Emphasis added.)

To tell a story about fictitious people who get into fictitious trouble because of their fictitiously poor planning is both false and misleading. Especially if the story is presented without disclaimer, as if it were true. This approach can mislead readers to believe you are recounting a true story about your own clients, Jane, Bob and Ellen.

Remember – when your law journal publishes the names of attorneys who have been disciplined, they typically do not list the infraction. AVVO  (the online ratings directory) also will list any disciplinary action on your profile. No one will know you were just “story telling.” They may assume you were embezzling funds from your clients’ estates!

3.       It undermines your marketing message. In the fields of estate planning and elder law, your goal is to establish trust, to build a reputation as a trusted adviser, to encourage prospective clients to trust you enough to give you a phone call.

You are poorly advised to begin that relationship with a lie. Even if you call it a story.

As a journalist, I come from a long line of gifted story tellers myself. My kids used to be very good at telling stories, too.  As they grew and matured, however, they learned the difference between a good story and a lie. The example above is a lie. Here is how it might become just a good story:

“Sometimes people place their trust in the wrong folks, particularly when it involves family. Be careful with granting powers of attorney, as things can go wrong. Consider a hypothetical family, with a daughter we’ll call Jane and her elderly mother, whom we will call Ellen …”

You see the difference? The first example is a lie, it is misleading to the reader. The second example is a story. You give the disclaimer, and everyone knows it’s a story. In many states, this approach is considered ethical – but not all. Some states make it very clear that storytelling of any type is considered “false and misleading.” So be careful. You are responsible for compliance with your own ethics rules.

But everyone should know better than to lie.

Comments

[Nicole Hamilton]

Disclaimer: I work in a marketing capacity with Educate2Motivate, the company referenced, but not identified, in this blog post.

First, we want to thank you for your efforts to ensure that our field continues to be held to the highest standards of integrity and respect. We couldn’t agree with you more.

With that in mind we wanted to make one small correction to your post. The stories in our newsletters are always based on real life situations. To protect confidentiality and privacy, names and identifying facts are changed. I was not able to find anyone in our company who had received a call from you, so we are not sure how you reached your determination that the stories were not true.

Nonetheless, your post raises other good issues. Especially about the ethics of using stories.
The reason we chose a story format for our newsletter offering was not to deceive readers. Instead, part of our mission at Educate2Motivate is to help lawyers meet their ethical duty to educate the public.
In our experience, teaching through stories has always been the most effective way to educate. Much more so than merely teaching abstract legal principals or a rote recital of do’s and don’ts. This is not something new created by Educate2Motivate but is something that has proven throughout human history. People simply seem to learn more effectively through stories.

Of course, because we all deal with issues of privacy and confidentiality, names and other aspects of a story must be changed.
This does not make the story any less true or meaningful. And while we believe most readers understand that names and facts are changed, we agree that it makes sense to let readers know that the stories, though grounded in fact, have been changed to ensure that privacy and confidentially are protected, and edited to make the story readable and so that it most effectively helps the lawyer reach the ethical goal of educating the public.

Thank you again for creating the opportunity to discuss this important issue.

[Jennifer Campbell Goddard]

Thanks Nicole. I did not mention Educate2Motivate by name, nor did I contact your company. The situation referenced is an example, and I did not want to single anyone out. Also, I did not know whether your company wrote the content or simply distributed it. However, based on your comments here, we may agree in theory but not in practice.

If you read my post carefully, I do not dispute that storytelling is a valid method of educating or of marketing. But it must be made perfectly clear in the telling of the story that is indeed a story. This was not done in the example I referenced.

A slight change in execution resolves the ethics issue, in my opinion. It may be a slight change, but it is indeed important.

Attorneys are held to a very high standard, both by their own ethics committees, by their colleagues, and by their clients. Storytelling is fine, as long as we are all clear that we are, indeed, telling a story.

And, of course, there are some ethics committees in some states who still disagree. Perhaps because of this "gray area." You say the story is true, but you're changing the names and the facts to protect privacy and confidentiality -- which means no one can check to see whether the story actually is true. Some ethics committees say no -- we're not buying it. And if you're going to play fast and loose with the facts, we're going to call FOUL.

So, attorney beware. Storytelling can be a dangerous art. Practice it carefully, or perhaps at your own peril.

[Jim Schuster]

Nicole,
you raise an important point that lawyers must pay heed to their ethical rules. Compliance awareness cannot be observed often enough in all the nuance and instances.

But. Let me put a different emphasis and that is we lawyers MUST recognize and be true to our tradition. We are storytellers. We represent people in the story of their life. A lawyer who is an ivory towered academic loses in trial to the advocate who knows what the trial is about. It is not about a legal point, it is a story, a drama of real people in the courtroom.

I will observe that most lawyer education/marketing material is as dry as a day old mud pack. And then many lawyers pack on the weasel words of disclaimer. Stories, based in fact, bring the law alive. Don't practice storytelling at peril. Learn how to tell stories that comply with the ethical rules of your jurisdiction.