For years, lawyers and law firms have been accustomed to doing their best to establish a favorable reputation as a way of winning clients. They have had to rely on word of mouth and referrals because they were prohibited from advertising their services. It was not that long ago, in 1977, when legal professionals were allowed to use standard advertising to promote their services, albeit with ethical limitations.
The era of legal advertising may be welcomed by many, but some would say it has eroded the “ethical” path of promoting legal professional services. Instead of building an image of being a dependable legal professional, many have become too reliant on advertising through traditional and digital media.
It would be great for attorneys to reacquaint themselves with the slightly more difficult but absolutely more formidable way of creating a reputation that attracts prospective clients and reassures existing ones. Here’s a rundown of essential dos and don’ts.
Keep important dealings with clients in writing, and be straightforward
To avoid confusion and prevent any opportunity for clients to make claims that do not reflect previous agreements, it is important to keep all dealings in writing. It is easy to assert truth and veracity when there are palpable proofs for them. Additionally, doing this keeps the formal tone of the communication and agreements between the lawyer and client.
Agreements do not necessarily have to be in writing to be enforceable. There are other ways to prove the validity of a verbal or non-written contract. However, a written contract makes things easier for all parties. It provides a readily available guide for everyone whenever contentions or complaints are made. It also presents an unassailable proof of expectations.
When coming up with a representation agreement, it is advisable to be as detailed as possible but not to the point of making the contract too verbose that the client is too overwhelmed to read. Vital information such as the hourly fee, fixed fee, contingency fee, representation costs and fees, duration and scope of representation, the manner of keeping client files, and the powers granted by the client to the lawyer should be included.
This brings us to the next point.
Do not lie and mislead
It is never good to be associated with lies or deceit. Lies in advertisements and public pronouncements can easily backfire and harm an attorney’s reputation. Legal professionals are expected to be familiar with the rules on ethical conduct.
The American Bar Association, under Rule 7.2, lays out model rules on lawyer advertising. These can be summarized as follows:
- Never claim or imply that you are an expert or specialist unless you have a certification from a sanction authority or organization. This does not mean, though, that you cannot mention the legal practice you specialize in.
- Avoid both blatant and indirect lies. These include exaggerations, misdirections, and misleading statements. The use of superlatives like the “best value for your money,” “guaranteed win,” “most prestigious,” and “cheapest fees” is not only misleading and often inaccurate. It can also be perceived as off-putting and unprofessional.
- The use of client testimonials in advertising is permitted, but they need to follow rules. Rule 7.2 (b) requires that client testimonials used in ads should not be the consequence of a payment made by the lawyer or law firm to the person making the testimonial or followed by a gift of significant value including the promise of “free” legal services.
Other countries have rules similar to these with possibly stricter enforcement. The Law Society of Singapore, for example, has advertisement and media publicity rules that are mostly similar to the ABA’s Rules 7.2 and 7.3.
Worse than lying in legal advertising is a lawyer who uses his good standing to deceive a potential client. This is what happened in the case of Malcolm Tan Chun Chuen, who was found guilty of five charges and disbarred by the Law Society of Singapore.
Here’s an overview of the case:
Malcolm Tan was a lawyer who also offered investment services through his company Bluesky Group. He was accused by investor Kuek Yak Yeon of misleading him to invest S$250,000 (~$186,000) in the former’s company.
Kuek Yak Yeon was under the impression that Tan would be overseeing his investment since the lawyer made him sign letters of engagement that had the letterhead of Keystone Law Corp., the law firm Malcolm Tan was a part of. The letters of engagement made it clear in their texts that there will be a solicitor-client relationship.
Kuek eventually learned that his money was made as an investment to Bluesky Group. He knew that the check was paid to a different company, but his understanding was that Tan would be responsible for it.
In a way, Tan was indeed responsible for the investment since he owns Bluesky Group. However, this responsibility was not in his capacity as a Keystone Law Corp lawyer.
The investor filed a complaint at the Law Society of Singapore and sought to get his money back. The Law Society conducted a disciplinary tribunal that laid seven charges against Tan including fraudulent representation and conflict of interest. Tan was found guilty in five of the seven charges.
Tan reportedly paid hush money to Kuek in exchange for dropping the case. This was before the verdict was made. However, this did not stop the tribunal from handing the convictions. No criminal cases were pursued, but the tribunal indicated that it intends to refer the case to the Attorney-General for possible criminal consequences.
“This is a case where the dishonesty violates the trust and confidence inherent in the solicitor-client relationship,” said Chief Justice Sundaresh Menon of the Court of Three Judges, which heard Tan’s cases.
Lying or giving vague statements to a client may only be acceptable if it is done for an altruistic purpose when there already is a lawyer-client relationship. As a Penn Law Review article on lying to clients notes, “if a deceptive statement is necessary to accomplish some legitimate purpose, such as protecting someone from needless harm, one might consider the deception justifiable unless the speaker could have accomplished the same purpose without deception.”
Avoid making clients feel clueless
Many lawyers like to show off their legal acumen. It could be to assure clients that their lawyer is competent, but it could also be to make clients feel that they should rely on their lawyer completely. Either way, it does not help when a lawyer keeps using legal jargon and expressions during consultations with the client.
A lawyer’s purpose is to assist a client with a legal problem. This entails making the client comprehend their situation without any ambiguity for them to open up and cooperate. Without adequate understanding, all of the responsibility in winning a suit rests on the lawyer. It will never be acceptable to blame a client’s supposed lack of cooperation if the lawyer fails to help the client understand the details of the case clearly.
Maintain a clean record, and correct errors as soon as possible
It’s difficult to gain anyone’s trust if you have committed anything that mars your trustworthiness. No matter how trivial or possibly concealable or evadable an offense is, never give in to the temptation.
Take the case of one Ohio lawyer who was convicted for the fourth-degree felony of using a client’s property without authorization. Things could have been worse, but it would have been way better if he resisted the urge to take advantage of a client’s situation.
The Ohio lawyer represented a woman who was detained for an illegal drug offense. With no cash to pay an attorney, the woman agreed to be represented by the lawyer after agreeing to entrust to him the sale of a piece of land she owned.
Perhaps tempted by the fact that his client was a law violator and in detention, the Ohio lawyer sold the woman’s property without her knowledge and kept all of the proceeds to himself. Inevitably, the woman complained after learning about it, but the lawyer claimed that he was entitled to the $127,767 sale proceeds in fulfillment of the supposed agreement (with the client) that he gets a “flat fee” for his services in the form of the piece of land.
Charges were filed and the Ohio lawyer was forced to give the woman her share of the property’s sale. The lawyer was only allowed to get $9,000 as his fee for representing the woman in court. He was fortunate not to be disbarred but was subjected to a five-year community control.
Lawyers frequently encounter situations that tempt them to violate rules or even commit crimes. Learning to resist these temptations is fundamental. A small offense can cascade to several other offenses or aggravate into serious ones.
But what about attorneys who have already been involved in misdemeanors? Does a blemished record make them eternally untrustworthy? Fortunately, the profession affords opportunities for a fresh start as long as offenders own up to their mistakes.
The Ohio lawyer story above was shared by Cathy Trent-Vilim, partner at Lamson, Dugan & Murray LLC, as a lesson on what to do and not to do as an attorney. It’s easy to be tempted to do the wrong things when you have the knowledge of the law and the opportunity to exploit other people’s weaknesses. However, when your comeuppance comes knowing, you have to face it and resolve to change for the better.
“If Counsel for Discipline comes knocking, answer the door. Ignoring disciplinary proceedings will not make them go away. It will only increase the severity of any sanctions,” Trent-Vilim advises. There are still chances for redemption just like how the Ohio lawyer above was spared from disbarment. It’s important to make sure you learn your lessons, though.
Know the difference between advertising and solicitation of clients
The legality of advertising legal services is not the same as soliciting legal services. Lawyers and law firms are prohibited from directly contacting a potential client to offer their services. To emphasize the difference, advertising means informing the general public about your services, while soliciting is targeting a specific person, business, or group with your legal practice advertisements.
Rule 7.3 of the American Bar Association says that “a lawyer’s communication is not a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to electronic searches.”
Additionally, it is a major offense to not only solicit a potential client but to coerce, threaten, or harass them to use your services. Using false or misleading information in trying to convince a person or organization to sign up for your services is likewise illegal and unethical.
The combination of shameless targeted advertising, coercion, and mistruths is never a good way to gain a client’s trust. Rule 7.3(c)(1) says that “live person-to-person contact of individuals who may be especially vulnerable to coercion or duress is ordinarily not appropriate, for example, the elderly, those whose first language is not English, or the disabled.”
Trustworthiness is the key selling point of a lawyer to potential clients and a seal of confidence for existing ones. It is not something online ads or billboards can guarantee. A sense of trust is built over time and best conveyed through word of mouth and the network of satisfied clients a lawyer has served over time.
To earn clients’ trust, lawyers must steer clear of any issue that can blemish their reputation while making sure that they are never associated with lies and misleading statements. If they choose to use legal advertising, it is a must to adhere to all ethical rules and principles. Moreover, it is important to be above board with clients while helping them clearly understand their legal circumstances and the courses of action they will be taking with the lawyer they choose.
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