Attorney advertising is everywhere. If you have driven around the Lehigh Valley, particularly on Route 22, Route 78, or Route 33, then you’ve inevitably seen the billboards. If you have local news or daytime television on, then you’ve likely seen the commercials too. The space that was formerly dominated by local attorneys has more recently become infiltrated by lawyers spanning from Philadelphia all the way down to Arizona and Florida. Not only have the ads become more widespread, but they are also less subtle, with the saturated market making it more difficult for law firms to stand out. While it may seem like attorney advertising has been here forever, it is a relatively recent phenomenon.
Historically, many in the legal profession viewed advertising by lawyers as beneath the dignity of the profession — the idea was that a lawyer’s reputation, word of mouth, or bar membership alone should determine trust. Over time, as more people needed legal help and legal problems became more common, attorney advertising seemed more and more necessary. However, before the 1970s, most state bar associations had banned all forms of attorney advertising. That changed in 1977, following Bates v. State Bar of Arizona, when the U.S. Supreme Court held that a state’s blanket prohibition on attorney advertising violated the First Amendment.
Following the Bates decision, attorney advertising slowly became the norm — but not without guardrails. Like most states, Pennsylvania has adopted the Rules of Professional Conduct, which sets forth codes that promote ethical behavior in the legal profession. The Rules, which emphasize integrity, competence, and professionalism, have several provisions that directly cover attorney advertising — aiming to strike a balance between public access to legal services and protecting the public from misleading, opportunistic, or exploitative marketing.
Perhaps the most important ethical guardrail for attorney advertising, Rule 7.1 ensures that all advertising must be truthful. Under Rule 7.1, a lawyer may not make false or misleading communications about their services. This includes misrepresenting facts, omitting important context, or using statements that are likely to create unjustified expectations. For example, an attorney cannot advertise “I’ve never lost at trial” if that attorney has never actually been to trial. Although the statement is technically true, the omission of critical context makes it run afoul of Rule 7.1.
Rule 7.1 also regulates an attorney’s ability to report achievements. If you have passed attorney billboards near each other, especially on I-95 in Philadelphia, then you’ve likely seen their competing efforts to showcase large verdicts or recoveries for clients. That is permitted by the Rules, so long as the results are not misleading. In other words, it cannot create an unjustified expectation that the potential client, seeing the advertisement, would necessarily obtain the same result for their case. However, this may be cured with a disclaimer, which is why you often see small print that says something to the effect of “Each Legal Matter is Unique. Prior Results Do Not Guarantee a Similar Outcome.”
Often missing from billboards and commercials is a claim by the attorney to be an “expert” or “specialist” in their particular field of law. That is not humility. It is because even where an attorney has decades of experience in a particular area of law (e.g., personal injury, family law, criminal defense, etc.), Rule 7.2 prohibits, with very limited exception, a lawyer from stating or implying that they are a specialist or expert in a particular field of law. Rule 7.2 also regulates the use of endorsements in attorney advertising. Any paid endorsement must be disclosed. In some states, law firms may hire celebrities or public figures for endorsements, which sometimes include college athletes, minor league baseball players, or former television stars. However, the Pennsylvania Rules of Professional Conduct blanketly prohibit endorsements from celebrities or public figures.
Lastly, Rule 7.3 governs the solicitation of clients, which is defined as live, person-to-person contact initiated by a lawyer to a specific individual for the purpose of obtaining legal work. A lawyer generally may not solicit a person where the significant motive is pecuniary gain. Solicitation includes direct text messages, but excludes targeted direct-mail advertisements. With some exceptions, solicitation is appropriate if the person being solicited is a lawyer, a personal friend, or has a prior professional relationship with the soliciting lawyer. The purpose of regulating solicitation is to remove undue pressure from the potential client.
Despite Pennsylvania’s guardrails, attorney advertising shows no signs of slowing down. For now, at least, the Professional Rules of Professional Conduct provide some hope that it will not become the total wild west.
