Many attorneys are unfamiliar with the rules regarding advertising their services, which is problematic since attorneys have a duty to review advertisements to ensure compliance with the rules.¹ Failure to follow the rules can result in professional discipline. Knowing the rules is especially important since most lawyers now advertise in some manner, even if it is just on their website.

MRPC 7.1 regulates all communications concerning a lawyer’s services, including both advertising and solicitation. It generally prohibits communications about a lawyer’s services that are false, fraudulent, misleading, or deceptive, and specifically prohibits communications that make material misrepresentations of fact or law (or omit a fact that is required to prevent the statement from being materially misleading), are likely to create unjustified expectations about results, that state or imply that the lawyer can achieve results through prohibited means, or that compare the lawyer’s services with other lawyers’ services unless the comparison can be factually substantiated. MRPC 7.1 applies to internet domain names.²

Whether something is misleading is usually a factual determination that must be made on a case-by-case basis after evaluating the totality of the circumstances.³ Examples of communications that could be considered misleading depending on the circumstances include using the phrase “law offices” in a firm name when the firm has only one location,⁴ inaccurate or deceptive statements about fee structures,⁵ false statements about qualifications or employment/ education history,⁶ and statements phrased in a way that may cause a reader to think suggestions or best practices are legally required when they are actually just things the reader should consider doing.⁷ An attorney cannot utilize a keyword advertising campaign using the name of another attorney or law firm without express consent.⁸ These are by no means the only things that can be considered misleading, and attorneys should exercise caution and review the appropriate resources when deciding what to say, or not to say, in advertisements.

To avoid any issues under MRPC 7.1, caution should be exercised in sharing client testimonials and reviews. A recommendation given by someone who has never used your services, and therefore has an insufficient basis to evaluate you, would likely violate MRPC 7.1.⁹ Lawyers normally can respond to negative reviews online but are generally prohibited from disclosing confidential information in response to online reviews and therefore should be extremely careful in responding.¹⁰ Blogs and social media can be effective marketing tools, but attorneys must take care to ensure compliance with the ethical rules.¹¹

Further clarification regarding permissible types of advertising is found in MRPC 7.4, which states, “[a] lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.” This can be done by listing specific certifications and specializations.¹² Awards, like Super Lawyer, may also be listed.¹³ Use of the title “judge,” and similar titles, by retired judges is specifically addressed by MRPC 7.1.¹⁴

Advertisements and websites must identify the name and contact information of at least one lawyer who is responsible for the advertisement, and “[t]he identification shall appear on or in the advertisement itself; or, if that is not practical due to space limitations, the identification shall be prominently displayed on the home page of the law firm’s website and any other website used by the law firm for advertising purposes.”¹⁵ In order to facilitate enforcement of the advertising rules, which exist to protect the public, MRPC 7.2(b) requires that “[a] copy or recording of an advertisement or communication shall be kept for two years after its last dissemination along with a record of when and where it was used.”

Advertising must be done in a manner that does not raise any unauthorized practice of law (UPL) concerns. Failure to do so could not only be a violation of MRPC 7.1 but also potentially a violation of MRPC 5.5 (the rule prohibiting UPL) or other rules/laws.¹⁶ Care should be used when listing nonlawyers on a firm’s website, letterhead, or advertisements, and if such persons are listed, it should be made clear that they are not lawyers.¹⁷ For paralegals/assistants, this can likely be accomplished by simply listing their job title, but for people who are licensed to practice law in other jurisdictions but not in Michigan, as well as for recent law school graduates, it is best to include a disclaimer stating they are not licensed in Michigan.¹⁸

The name of an attorney who is no longer actively licensed generally must be removed from a firm’s name, letterhead, website, and advertisements. The unlicensed attorney and the firm must follow all applicable rules and requirements for when an attorney is suspended.¹⁹ Attorneys licensed in multiple jurisdictions should hold themselves out as being able to practice law in a jurisdiction only if their license in that jurisdiction is active. If an attorney chooses to include jurisdictions in their bio where their license is inactive, it should be clearly and conspicuously noted that the license is not currently active and that the attorney cannot presently practice law in that jurisdiction. Attorneys licensed in multiple jurisdictions must familiarize themselves with the ethical rules of the other jurisdictions to ensure compliance.

Firm names and letterhead are primarily governed by MRPC 7.5.²⁰ MRPC 7.5(a) prohibits lawyers from using a firm name, letterhead, or professional designation that violates MRPC 7.1^.21 Trade names cannot violate MRPC 7.1 and cannot “imply a connection with a government agency or with a public or charitable legal services organization.”²² MRPC 7.5(b) permits law firms with offices in multiple jurisdictions to use the same name in each jurisdiction as long as it is clearly indicated which lawyers in an office of the firm are not licensed to practice in the jurisdiction where the office is located. MRPC 7.5(c) prohibits using a public office holder’s name in a firm name or advertisements. MRPC 7.5(d) allows lawyers to state or imply that they practice in a partnership/organization only if that is true.

Attorneys must also ensure compliance with any generally applicable consumer protection and advertising laws that may apply. A discussion of such laws is outside the scope of this article, but various resources are available online, including through the Federal Trade Commission. Information regarding rules for advertising during judicial campaigns is available on SBM’s website.²³

Somewhat related to advertising is solicitation, which is generally prohibited under MRPC 7.3, which also defines what is and is not solicitation.²⁴ Much like attorney advertising, solicitation used to be more heavily restricted until, as the text of and comments to MRPC 7.3 recognize, the U.S. Supreme Court invalidated some of the traditional restrictions on solicitation. Due to the size constraints of this article, it is impossible to fully discuss the topic of solicitation, but there are many available ethics opinions on this topic, as well as case law.²⁵ It should be noted that it is generally not solicitation for an attorney who is departing a firm to inform active clients of the departure; and in fact, notification is normally required.²⁶ Besides MRPC 7.3, there are other rules and laws that regulate certain types of solicitation, such as MCL 257.503, MCL 750.410, and MCL 750.410b, which all relate to solicitation following an automobile accident.²⁷ Attorneys should familiarize themselves with any and all rules and laws that apply to their particular practice area.

With some exceptions, a lawyer cannot give anything of value to someone in exchange for recommending their services.²⁸ MRPC 5.4(a) prohibits paying a referral fee to a nonlawyer, which includes prohibiting basing a nonlawyer employee’s compensation or bonus on referring or recruiting clients to the firm; however, a nonlawyer’s bonus or salary can be based upon a percentage of a firm’s net profits.²⁹ Lawyers can pay a referral fee to another lawyer, provided that certain rules and requirements are satisfied.³⁰ Lawyers that host social/networking events and parties must ensure compliance with advertising and solicitation rules.³1 Judges who attend such events also must ensure adherence to applicable ethical rules.³²

In conclusion, for better or worse, modern attorneys frequently advertise, and in many fields of law, advertising is essential to growing and maintaining a practice. It is therefore more important than ever that attorneys familiarize themselves with the rules and best practices regarding advertising so that they can ensure compliance.