To the everlasting chagrin of the refined and the high-minded, lawyers are ethically permitted to advertise subject that is, to the caveat that they can’t be untruthful. But by the same token, there’s nothing requiring advertising lawyers to adhere to bounds of good taste when marketing their services. Poor taste can still pass for truth in advertising.
This Christmas, for example, one lawyer sent me a holiday greetings card featuring a smashed-up automobile. Somehow that tacky image failed to convey the same warm fuzziness of a crèche or a jolly St. Nick. But like blood spatter seen only under infrared light, you’ll need more than luminol to discern the thin line between good taste, common sense, and what’s ethically permissible advertising.
The dog likes the pecuniary pony.
More often than not, what’s nothing more than ill-disguised trolling for clients passes itself off as a public service message or a public informational seminar. Such up close and personal public education presentations aren’t always what they’re cracked up to be.
‘Dog and pony’ shows have long been used by lawyers to market their wares, especially revocable living trusts and their attendant financial services instruments, annuities and insurance vehicles. Of late, the dog and pony has even been trotted out to market foreclosure defense services and even free family law seminars.
But notwithstanding that Ethical Rule 7.3 disingenuously prohibits lawyers from soliciting “professional employment” from client prospects for the “lawyer’s pecuniary gain,” I can’t fathom otherwise why most law firms would provision the carrots and milkbones for such ‘dog and pony’ events where it not for their potential remunerative rainmaking benefits.
Of course it’s one thing to run free family law seminars at the public library or to disturb somnambulist service club members with lunchtime extolments of estate planning’s virtues. But lawyers aren’t supposed to shill for business as part of such ‘educational’ offerings. They can’t pass out business cards or brochures, use cappers, or plant foils in the audience to induce attendees to be clients. They also can’t pass out steak knives or key fobs to trap you like high pressure time-share torturers either.
And then there are those other lawyers who employ more subtle, attenuated marketing approaches. Years ago, I knew an estate planning lawyer who regularly sent out his marketing representative to visit local nursing homes and assisted care facilities to drop off donuts and chat up the office personnel. She had a regular route and did this every month. Think he was doing this merely to be munificent or because he had stock in “Krispy Kreme”?
Some jurisdictions, like California, for example, have laws such as B&PC 6152 that prohibit the use of “runners or cappers” to solicit business for the attorney in or about prisons, jails, hospitals, courts and other public and private places. Cappers and runners are non-lawyer agents paid by lawyers for securing or soliciting clients. The litmus test is whether or not the lawyer pays for such referrals.
So is it just a question of making sure you don’t get paid for referrals? Or conversely, that you don’t pay for the referrals? Also see, for example, “Your ABA: Can a Lawyer Accept Referral Fees or Commissions from non-lawyers.”
“Manus manum lavat.”
And what to make of those so-called cozy relationships being so ignominiously reported in the local Arizona paper these days. These instances don’t apparently involve payment of fees for referring clients. But they do suggest a bit of the age-old ‘manus manum lavat‘ or where the one hand washes the other.
If a lawyer offers to train fiduciaries, for example, is there an implied quid pro quo? Are those fiduciaries expected to later refer business to that lawyer? See “Hospitals can call fiduciaries for patients” and “Lawyer-fiduciary ties raise questions.”
Or what about the fiduciaries and their lawyers who offer to present financial planning breakfast seminars for their senior center residents? See for example, “Maricopa County Probate Court – Senior-aid centers may lead to costly fees”, which quotes one astute senior center spokesperson who says, “A lot of them come to places like ours. We don’t let them in. We see the people we serve as vulnerable, so you try to eliminate anything from the outside that would create more vulnerability.”
But maybe this is just me. I have long admitted to an out-sized cynicism.
So why can’t a pancake breakfast be nothing more than a laudatory instance of civic-mindedness? And why can’t a buttered croissant, conversation, and cup of coffee be just a disinterested noblesse oblige?
But then again, a novelist I know also once wrote, “When sincerity fails, the offer of money usually works.”