Lawyer Marketing Enters Its Fourth Decade

Thirty Years after Bates v. Arizona, we’re still figuring it out.

By Micah Buchdahl

It has been thirty years since the seminal U.S. Supreme Court case, Bates and O’Steen v. Arizona opened the door to lawyer marketing and advertising. Yet, law firms continue to struggle with issues of ethics and professionalism.

Despite valiant attempts by the American Bar Association and State Bars to figure out an effective way to regulate the world of lawyer marketing, the reality is that there continues to be tremendous friction, and little agreement. Rodney Smolla, Dean of the Washington and Lee University School of Law and a noted first amendment scholar suggests that the world of lawyers is divided about 50/50 regarding whether there should or should not be advertising in the profession. And, he often relates, it is not something based on age or practice, but an individual’s thoughts about professionalism and reputation.

In an age of multi-jurisdictional practices and ancillary businesses, virtual clients and virtual offices, the fact that some law firms still fail to designate attorneys to monitor and oversee the rules and the way the firm adheres to them, is no longer something to take likely. As leaders of firm management, making sure someone covers this base is as important as firewall protection for your computers.

New York has been a flashpoint of debate in the last two years, as the state has tried to tighten ethics rules in relation to advertising and solicitation. Just when they thought the rules were in place (in February), a court overturned a large chunk of them (in November). The state plans to appeal.

In New Jersey, ethics opinions in recent years dealing with domain names, lawyer awards, ancillary businesses (and mediation, in particular) and other forms of marketing have been met with mixed response and results.

While Iowa is still considered the toughest, it is Florida that has the greatest effect on the largest number of lawyers, in regard to their restrictions and enforcement mechanisms. They take it seriously, and they back it up with money and staff to monitor the market.

In an increasingly competitive market, rest assured, an expectation that you are “playing by the rules” is important to your firm’s success and reputation.