Will lawyer advertising again become 'illegal'?

Some of us can still remember when lawyer advertising was prohibited by the Code of Professional Conduct. It took a landmark U.S. Supreme Court decision in Arizona v. Bates nearly 30 years ago to reassure lawyers that having a business card would not get them disbarred.

Since then, of course, the legal marketing field has exploded. But it seems as though the legal establishment, as represented by state bar associations, won't support the concept.

Last year, the Washington state bar association rejected CLE credit for a program focusing on managing client expectations, because the intent of the program was to teach marketing skills to lawyers. (Advertising, of course, is one form of marketing, though advertising was not part of the program.)

Why is marketing bad? What is wrong with helping lawyers seek out those who can best use their services and describe those services to them? This is not perpetrating fraud on prospects; it is helping prospects identify what they want and need.

Two highly publicized examples from 2006 make the question even more pertinent:

• The New York state bar has proposed that "computer-accessed communications" such as blogs be included in New York's definition of legal advertising, and therefore require state scrutiny. The proposal includes a requirement that would require lawyers to file copies of computer-accessed communications with the attorney disciplinary committee in the appropriate judicial department of the state. It also requires lawyers to retain copies of all written advertising, including websites and communications that may be accessed by computer, for at least one year.

• The New Jersey state bar's Committee on Attorney Advertising threatened to prohibit the state's lawyers from participating in such peer review surveys as those sponsored by "The Best Lawyers in America" and "Superlawyers," and from publicly communicating the fact that they had been selected for inclusion in these publications - on the grounds that such recognition creates "an unjustified expectation" about the results that the lawyers selected can achieve. The state Supreme Court finally stepped in and put the order on hold pending review.

Can you imagine requiring lawyers to submit their blog posts to the state bar before "going public" with their comments?

Two rules of thumb for successful blogs are speed (quick response to current events) and "content is king." In other words, blogs with content that enables readers to learn more about the subject of the blog focus will receive more attention and become a site of renewed readership.

As for the directories, what happened to the standard of "truth in advertising?" What more protection does the public need? What is wrong with letting the world know that their peers selected them for an honor?

It is one thing to regulate for truth and fairness in promotional statements, and to restrict hyperbole so as not to create false expectations. It is another thing to say how the communication can be framed.

The bar seeks to regulate lawyers in ways that they do not, would not and could not regulate others such as doctors, accountants and plumbers. The losers are small firms and sole practitioners - and those clients who would benefit from learning about them.