I’ll admit that advertising missteps rarely garner much attention from those who enforce the Rules of Professional Conduct. This shouldn’t be much of a surprise because, truth be told, complaints about what some firm is doing with their advertising campaign almost always come from competitors. Disciplinary complaints filed by consumers of legal services upset with their lawyer’s advertising tactics are rare indeed. Think about it. Have you ever come across a headline in your bar journal that read something like “Lawyer Loses License for Using a Trade Name that Misled the Public?” I suspect not. Now, I’m not trying to suggest that the advertising rules are never enforced, it’s just that disciplinary efforts here are more along the lines of pointing out concerns and giving a firm an opportunity to rectify the misstep as opposed to a more aggressive process of a thorough investigation and prosecution that would rightfully follow a legitimate complaint about a theft of client funds.
That said, I do think a brief discussion that focuses on advertising missteps that are sometimes made with letterhead and websites is still worthwhile. And while I don’t wish to minimize the importance of taking any and all advertising related ethical guidance set forth in the Rules of Professional Conduct to heart, I’m going to come at this topic from a risk management perspective because playing fast and loose with the advertising rules can lead to unintended consequences.
A principle concern is the exposure that can come from misleading the public by implying a relationship exists between lawyers when in fact there is none. For example, two solos who happen to share office space should not create common letterhead listing themselves as something along the lines of “The Law Offices of Smith and Jones” because doing so could result in the unintended creation of a partnership by estoppel between these two. Despite their intent to simply share space with each lawyer being responsible for his or her own liability, their use of common letterhead and/or a common “firm” name in advertising media can significantly alter their exposure. Trust me, malpractice carriers have indeed defended and paid out losses on claims that arose out of this very scenario, much to the surprise and chagrin of the “innocent” lawyers who had no knowledge of, or involvement in, the underlying matter of an uninsured office suitemate.
A similar concern is the careless use of the term “of counsel” by lawyers who are in fact independent; and while using the term on letterhead is problematic, it’s even worse when a solo or small firm decides to list multiple of counsel lawyers on the firm’s website. Of course, I get the marketing value of trying to have a firm appear to be more than it actually is; but again, if it isn’t true don’t do it. Here’s why. By using this term, a firm is making a public statement that every of counsel lawyer has close, ongoing, regular and frequent contact with the firm for the purpose of consultation and advice. In addition, more than a few ethics opinions clearly state that an of counsel lawyer must be more than an advisor on only one case or just a forwarder or receiver of legal business.
So, here again the unintended exposure to a malpractice claim can be the consequence, only in this situation there’s also a potential coverage problem. Many malpractice policies provide coverage for work done in an attorney-client relationship and on behalf of a client of the named insured, which is the firm. By agreeing to be listed as of counsel to another firm, a lawyer is agreeing to being held out as a provider of professional services that will be on behalf of clients of that firm. Here’s the problem. Should a claim ever arise out of a matter the other firm was handling, and the of counsel lawyer is named in the suit simply because he or she was listed as of counsel on the letterhead or on the website of this other firm, a coverage dispute is in the works if the of counsel lawyer isn’t listed as an insured under the other firm’s policy. Suffice it to say I’ve come across situations like this more than you might guess.
One final note. Sometimes lawyers will try to solve the problems I’ve just highlighted by trying to use some sort of disclaimer or clarifying statement. For example, several solos who simply wish to share office space may publicly refer to themselves as “The Springfield Family Law Center” and then in fine print add the phrase “an association of independent attorneys.” Don’t assume that an approach like this solves the problem. It often won’t. Nonlawyers may or may not understand what words like association actually mean and, in the end, you don’t get it both ways. In short, lawyers can’t pretend to be something they aren’t and not expect consequences as a result.
Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 600 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.