Ethics in DUI Lawyer Advertising

Posted on March 26, 2023 in Uncategorized

By Ryan Katz

Advertising is an essential part of almost any business, and a law firm is no different. After all, knowing everything about DUI law in your state isn’t very useful if you aren’t getting any cases. While not every firm is going to pay for testimonials on prime time television or rent dozens of billboards around their state, every firm can benefit from advertising and getting the names of its attorneys out to the public. However, it is important to know just what you can and cannot say and do when advertising. Just as in everything else a lawyer does, we have to be sure to comply with every lawyer’s favorite thing: rules. Specifically, the American Bar Association (ABA), as well as individual states, have published rules and opinions regarding lawyer advertising and self-promotion that lawyers must be sure to follow. This article will focus on the ABA Model Rules, with some discussion of specific cases in individual states. The rules in your state may vary from those discussed here, and it is each lawyer’s responsibility to know the rules in the state where they practice.

Freedom of Speech is not Freedom to Say Anything and Everything

Many types of businesses have limitations on advertising, and these government implemented or enforced limitations on speech are often challenged under the First Amendment. Obviously, these challenges have not been universally successful. Just as food distributors have lawful regulations on advertisement, it has been determined that lawyer advertisement can lawfully and constitutionally be limited. The Supreme Court has found that states specifically have the ability to regulate commercial speech that is inherently misleading. See In re R.J.M, 455 US 191 (1982). States can similarly limit lawyer advertisements that are “potentially misleading. See Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (1990). Despite what Hollywood would have the public believe, lawyers are meant to be honest, both in court and when addressing the public, potential clients, and anyone else.

Implied Violations are Still Violations

A lawyer may not use an advertisement which states or even implies that the attorney is willing to engage in conduct that violates the Rules of Professional Conduct. The facial application of this is very apparent. Do not tell your clients you will lie, fabricate evidence, or tamper with witnesses. However, this rule can be applied in more subtle ways that sometimes land the advertising lawyer in unexpected trouble. For example, in Florida, one attorney was disciplined when the Florida Bar found that the lawyer’s advertisements, involving illustrations of pit bulls and the phone number 1-800-PIT-BULL, violated Bar advertising rules. Specifically, they found that the comparison of the attorneys of the firm to pit bulls could impermissibly be seen as a statement as to the quality of the attorney’s legal services, as well as imply that the attorneys “will get results through combative and vicious tactics that will maim, scar, or harm the opposing party, conduct that would violate our Rules of Professional Conduct.” Fla. Bar v. Pape, 918 So. 2d 240 (Fla.2005).

Misleading the Public is Lying to the Public

A lawyer is prohibited from making false or misleading statements about the lawyer’s services. These can include any misrepresentation of fact or law, as well as any omission of fact that results in a statement being materially misleading. A lawyer is always meant to be truthful and professional, so being “technically honest” is not enough. If an advertisement is technically honest but still likely to cause the viewer to reach an incorrect conclusion, that advertisement is misleading and impermissible. For example, stating “I have never lost a DUI trial” can be misleading if all of your DUI cases resulted in a plea. While you may be telling the truth, the statement would mislead the common reasonable person to draw untrue and unfounded conclusions about your services.

A DUI Focused Practice Alone Does Not Make You a DUI Specialist

A great way to bring in potential clients is, of course, to ensure them that you are experienced in your field. DUI is a very complicated and unique area of criminal law. There are many attorneys who spend their entire career handling mostly DUI cases, and it makes sense that they would want potential clients to know this. However, Bar rules prohibit a lawyer from making certain claims about their experience. For example, many states offer actual certifications as experts or specialists in DUI defense. If you are not certified as a specialist, you cannot call yourself a specialist in your advertising. Without certification, even if you have twice the DUI cases under your belt as the most experienced certified specialist in your state, they are a specialist or expert, and you are not. That is not to say that you cannot advertise your experience. A well-practiced DUI attorney who is not certified as a specialist or expert may generally still make claims like “our firm specializes in DUI defense,” so long as you do not imply that you are actually a certified DUI specialists. You can also become an “Expert” by passing the qualifications for Board Certification as a DUI Defense Specialist offered by the National College for DUI Defense. The ONLY organization accredited by the American Bar Association to confer Board Certification as a Specialist in DUI Defense. As stated at the beginning of the article, this is based on the ABA’s Model Rules. Individual states may have different rules regarding claims of expertise. For example, the Florida Bar has determined that a lawyer may claim expertise or specialization only if the claims can be objectively verified by the lawyer’s education, training, experience, etc. but they do not need to be Board Certified to use the terms.

Keyword Advertising

As technology has advanced, lawyers and all other professionals have needed to adapt and find new ways to reach potential clients. Keyword advertising is a great way to help potential clients find your firm. Search engines like Google allow businesses to pay for advertising space when certain words or phrases are searched. For example, one could pay so that their firm is the first result when somebody Googles “Florida DUI attorney.” These advertisements are generally allowed. However, lawyers may not use them in misleading ways. For example, in Texas, one firm (Firm 1) bought and out-payed for of same keyword advertisements as another firm (Firm 2). See Adler v. McNeil Consultants, LLC, 3:19-cv-2025 (N.D. TX 2022) These keywords included several of Firm 2’s trademarked terms, including terms related to the names of the partners. The advertisement, which would now appear as the first result online, did not provide any details to distinguish Firm 1 from Firm 2, and selecting the link would cause an automatic phone call to Firm 1. This type of keyword advertising was impermissibly misleading because of the likelihood of confusing potential clients and misleading them into at least initially believing that Firm 1 and Firm 2 were the same.

Advertising is important for any firm or business. No firm can continue to run without a constant influx of new or returning clients. As technology continues to change, it will always be important for lawyers to understand how to effectively reach those who need their services. It is equally important for lawyers to understand how to do so without violating any lawyer advertising rules.

By Ryan Katz
Katz & Phillips, P.A.
Orlando, FL

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