Ethics Question of the Month March 2020

To File or Not to File? That is the Question

What marketing materials must be submitted to the state bar for approval?

The Situation

Attorney Deidre is opening her own boutique law firm that focuses on corporate and transactional work throughout Texas. She is working with an outside expert to create a marketing campaign to advertise the firm’s opening and to highlight the nature of her practice. The elements of this marketing effort include: 

  1. A professionally-designed firm website with web pages covering an overview of the firm and its practice areas, Deirdre’s biography, her blog on corporate law, and descriptions of a select number of legal matters that Deirdre has previously handled on behalf of her clients. These matters include several large corporate mergers, several general corporate matters, and a few real estate matters. 
  2. A one-page “tombstone” ad announcing the opening of the new firm to be mailed to specific attorneys and potential clients identified by the marketing expert. The ad includes only the firm’s contact information, the attorneys in the firm, and the firm’s practice areas.  
  3. An advertisement in the Texas Bar Journal that includes the same information as the tombstone ad plus the description of past legal matters from the website. 
  4. Advertisements in the Dallas Business Journal, the Houston Business Journal, the San Antonio Business Journal, and the Austin Business Journal that are identical to the advertisement in the Texas Bar Journal.     

Deidre is aware that she is required to submit certain marketing materials to the State Bar of Texas Advertising Review Committee for review and approval.

The Question

Under the Texas Disciplinary Rules of Professional Conduct, which of Deirdre’s marketing materials must be submitted for approval to the State Bar?

The Correct Answer is D Of 25 Responses, 24% are correct.

  1. A 9
  2. B 5
  3. C 2
  4. D 6
  5. E 3

The Explanation

Rule 7.07 of the Texas Disciplinary Rules of Professional Conduct requires that “an advertisement in the public media” be filed with the Advertising Review Committee of the State Bar of Texas no later than its first dissemination in the public media.  While each piece of Deirdre’s marketing effort may appear to “an advertisement in the public media,” they are each treated differently under the TDRPC:

1. Websites.  A law firm website is considered “an advertisement in the public media” and must be filed with the State Bar.  Rule 7.07(c) defines “website” as “a single or multiple page file, posted on a computer server, which describes a lawyer or law firm's practice or qualifications, to which public access is provided through publication of a uniform resource locator (URL).”   The “intended initial access page” must be filed no later than its first posting on the internet or “other comparable network of computers information concerning the lawyer's or lawyer's firm's website.”  

Deirdre is required to file the “initial access page” with the Advertising Review Committee.  

2. Tombstone ads.  So-called “tombstone ads” are exempt from the filing requirements under Rule 7.07(e), which reads: 

(e) The filing requirements of paragraphs (a), (b), and (c) do not extend to any of the following materials, provided those materials comply with Rule 7.02(a) through (c) and, where applicable, Rule 7.04(a) through (c):

  • (1) an advertisement in the public media that contains only part or all of the following information,
    • (i) the name of the lawyer or firm and lawyers associated with the firm, with office addresses, electronic addresses, telephone numbers, office and telephone service hours, telecopier numbers, and a designation of the profession such as "attorney," "lawyer," "law office," or "firm";
    • (ii) the particular areas of law in which the lawyer or firm specializes or possesses special competence;
    • (iii) the particular areas of law in which the lawyer or firm practices or concentrates or to which it limits its practice;
  • *   *   *
  • (4)  an announcement card stating new or changed associations, new offices, or similar changes relating to a lawyer or firm, or a tombstone professional card;

Because Deirdre’s tombstone ad falls under these exceptions, she is not required to file it with the Advertising Review Committee.  

3. Ads in legal publications. According the Advertising Review Committee, advertisements that are in legal trade publications are exempt from filing requirements because marketing materials directed at other attorneys are not subject to Rule 7.07 filing requirements. Rule 7.07(e)(5) reads in part: 

(5) in the case of communications sent, delivered, or transmitted to, rather than accessed by, intended recipients, a newsletter, whether written, digital, or electronic, provided that it is sent, delivered, or transmitted mailed only to:

While the language of this Rule may seem ambiguous, the Ad Review Committee takes the position that advertisements in publications circulated primarily to lawyers do not constitute an “advertisement in the public media” under the Rule. To assist attorney in interpreting the advertising rules, the Committee has published a series of interpretive comments that provide guidance on how the Committee interprets the advertising rules.  The very first interpretive comment makes clear that an advertisement in publications like the Texas Bar Journal need not be filed with the Committee:  

1. Public Media Advertisement (Nov. 1995) A public media advertisement is an advertisement broadcast or made available to the general public, such as telephone Yellow Pages, newspapers or other periodicals, outdoor display, the Internet, radio or television. Publications or information disseminated primarily to lawyers, such as legal newspapers, legal directories, firm brochures mailed to other lawyers, and on-line services provided to lawyers are not considered to be in the public media.

Because Deirdre’s ad in the Texas Bar Journal is “disseminated primarily to lawyers,” she is not required to file this ad.    

4. Ads in general media publications.  The ad in the four business journals is treated differentlyfrom the identical ad in the Texas Bar Journal because those publications, sold to and read by non-lawyers, are considered to be directed at the general public are.  So even though the ad is identical, the intended audience – here the “general public” – is different and brings the ad under the filing requirement of Rule 7.07.  

Deirdre must file this ad with the Advertising Review Committee. 

Under the TDRPC, only the first and fourth ad must be filed.

D is the correct answer.  
 

Bluebook Citation

To File or Not to File? That is the Question: Ethics Question of the Month - March 2020, Texas Center for Legal Ethics (2020), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-march-2020/ (last visited Apr 23, 2024)

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