Licensed attorneys are subject to the Texas Disciplinary Rules of Professional Conduct, which restrict attorney advertisements. Violating these rules can lead to disciplinary proceedings for lawyers that carry the potential for significant sanctions. If you are a lawyer and you find yourself facing disciplinary action related to marketing and advertising, you should contact a one of our defense attorneys at Bertolino LLP for advice and guidance.
Lawyer Advertising and Solicitation Rules in Texas
Rule 7 of the Rules of Professional Conduct governs lawyer and law firm advertising and solicitation, or “communications concerning a lawyer’s services.” These rules underwent the most significant amendments in more than a decade in 2021, largely to reflect technological and digital developments in today’s age. As a result, all lawyers should familiarize themselves with these rules to avoid disciplinary action, particularly if they have not looked at these rules for some time.
False and Misleading Statements
Under Rule 7, an “advertisement” is “a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to members of the public in general, which offers or promotes legal services under circumstances where the lawyer neither knows nor reasonably should know that the recipients need legal services in particular matters.” In addition, rule 7.01 requires that all lawyer communications, including advertisements, be neither false nor misleading concerning the qualification or the services of the lawyer or law firm. In other words, the advertisements must be truthful and non-deceptive.
More specifically, a statement, whether in an advertisement or another communication by a lawyer, is false or misleading if it:
- Contains a material misrepresentation of fact or law;
- Omits a fact necessary to make the statement considered not materially misleading;
- Is substantially likely to lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation, or
- Is substantially likely to create unjustified expectations about the results the lawyer can achieve.
Lawyers also must not use statements that are truthful but misleading. For example, you cannot state something is true but do it in a way that would make a reasonable person think that they must take further action when action is not required.
Other examples of misleading advertising include using an actor to portray a lawyer in a commercial if there is a substantial likelihood that a reasonable person would conclude that the actor is the lawyer who will provide legal services. It also can be misleading if a lawyer communicates knowing they are likely to refer the client to a lawyer in another firm. Finally, advertisements can be misleading if they are likely to create unjustified expectations for prospective clients about possible results.
You must also avoid advertising your law practice or firm using false or misleading names. Rule 7.01(c) does permit lawyers and law firms to use a trade name if it is not false or misleading. In addition, you may not use the name of a lawyer who holds public office in the name of a law firm or communicates on its behalf during any substantial period when the lawyer is not regularly and actively practicing law with the law firm. Finally, a law firm can use the same name in multiple jurisdictions. Still, it must always identify which lawyers in an office are licensed to practice in a jurisdiction and which are not.
Content of Advertisements
Rule 7.02 speaks directly to the required content of all lawyer advertisements. For instance, any advertisement of legal services must publish the name of the lawyer responsible for the advertisement, as well as their primary practice location. In addition, the lawyer can advertise that they practice in some areas of the law and not others. However, the lawyer cannot include statements of certification or designation by an organization, except if the Texas Board of Legal Specialization has awarded them a Certificate of Special Competence or the Board has accredited an organization that recognizes a specialty. Finally, the attorney must adhere to specific guidelines when it comes to advertising fees and contingency fees.
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Advertising Review Committee of the State Bar of Texas
Lawyers and law firms must submit advertisements to the Advertising Review Committee of the State Bar of Texas to determine compliance with the Texas Disciplinary Rules of Professional Conduct under Rule 7.04. They must provide a copy of the advertisement and a completed application and pay a fee. Rule 7.05 does exempt some advertisements, but otherwise, lawyers must file all their advertisements with the Committee no more than ten days after the date of dissemination of the advertisement. The Advertising Review Committee can also request additional information from the lawyer regarding substantial allegations or representations made in those materials. Upon receiving this request, the lawyer must respond promptly to the Committee.
Failure to submit non-exempt materials to the Advertising Review Committee violates the Texas Disciplinary Rules of Professional Conduct. Lawyers can face fines and review fees from the Advertising Review Committee if they do not file Rule 7.04.
Under Rule 7.04(c), a lawyer can get pre-approval for an advertisement by submitting it to the Advertising Review Committee at least 30 days before its first dissemination. This process can help avoid a rule violation if a lawyer is concerned that a proposed advertisement might constitute a violation.
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Get Assistance Defending Your Law License Today
A disciplinary complaint to the State Bar of Texas can lead to substantial adverse effects on your career. Disciplinary action against you could lead to a suspension or even the loss of your license. However, you may be able to avoid these damaging consequences with the right type of defense from the outset of your case. Start by contacting the experienced law license defense attorneys at Bertolino LLP so that we can begin investigating your case. You can call our office at (512) 798-4892 or visit us online for more information about the services we can offer you.
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