1. New Member Orientation 2011-2012 Bar Year Advertising Review Committee State Bar of Texas www.texasbar.com/adreview www.texasbar.com/adreview

2. Statutory Background Texas statutes relevant to the Ad Review Committee’s work: State Bar Act (chapter 81 of the Tex Gov’t Code) Texas Disciplinary Rules of Professional Conduct (TDRPC) Promulgated by the Tex. Supreme Court Approved by membership of State Bar of Texas “Advertising Rules”: Part VII of the TDRPC Rules 7.01 – 7.07 Open Records Act (chapter 522 of the Tex. Gov’t Code) Written correspondence and email pertaining to Committee business is a public record Subject to production pursuant to a public information request

3. Committee Resources Other committee resources: Internal Operating Rules Interpretive Comments Reference Guide to TDRPC and ICs www.texasbar.com/adreview “Submission Directions” link “Completing the Application Form” link “Frequently Asked Questions” link

4. Committee Membership and Meetings Committee Membership: 12 members – three-year staggered terms Nine lawyer members Three “public members” (i.e., non-attorneys) Meetings : At least quarterly, usually monthly, at discretion of Chair Quorum – simple majority of members Participation is mandatory per Board of Directors Policy Manual § 4.03

5. Purpose of Advertising Rules Why do we have advertising rules? There used to be no attorney advertising Bates v. State Bar of Arizona (1977) U.S. Supreme Court: Advertising cannot be false, deceptive or misleading Advertising rules reflect this principle Today: free speech vs. protection of public We do not determine whether ads are tasteful

6. Attorney Advertising is Born 6

7. ARC does not Regulate Taste Name omitted

8. Filing of Attorney Advertising In Texas, certain attorney advertisements must be filed How to File Advertisements with the State Bar: See Rule 7.07 Fee is $75.00 Application is online at www.texasbar.com/adreviewwww.texasbar.com/adreview Deadlines: 30 days prior for pre-approval Before first dissemination for concurrent approval Time frame for review: 25 days for pre-approval 40 days for filing (concurrent approval) Non-filers: $300 fee and possible disciplinary action

9. Ad Review Application Process Process for review: If approved: Finding of compliance is generally binding in any subsequent disciplinary proceeding If disapproved: Ad must be amended Failure to amend or to run non-compliant ad will be referred to Chief Disciplinary Counsel (CDC) Failure to respond to ARC will be referred to CDC Finding of non-compliance by ARC is not binding in subsequent disciplinary proceeding

10. Advertising Review Application Process

11. Definition of Advertisement What is an advertisement in the public media? Generally, those made available to public Motivated by desire for pecuniary gain Examples: Billboards Print ads in newspapers, magazines Yellow page ads Letters to prospective clients Television/radio ads Websites (home page) Infomercials You Tube video MySpace and Facebook pages

12. Definition of Advertisement What is not an advertisement in the public media? Legal newspapers/trade publications “Tombstone” ads Legal directories Letters/materials sent to other lawyers Information sent by request Information sent to past or existing clients Charity sponsorships

13. Advertising Rules and Social Media The filing requirement applies when: address the qualifications or the services of any lawyer or firm are not exempt under Rule 7.07(e) are generally available to the public the communicating attorney must file the electronic communication with the Advertising Review Committee.

14. Attorney Communications Communications re: Atty Services (Rule 7.02) Prohibits: false or misleading statements regarding services or qualifications of any lawyer or firm Applies to: Audio, digital and electronic communication Not just written communication

15. Attorney Communications Communications re: Atty Services (Rule 7.02) Examples of “false and misleading”: Material misrepresentations/omissions Guaranteeing results/creating unjustified expectations Unsubstantiated comparisons of services Implying improper influence with judge Advertising as a specialist without certification

16. 16 Attorney Communications 2005 Revisions to 7.02 New provision – no references to past successes or results unless: Lawyer was lead counsel or “primarily responsible” “Amount involved was actually received by the client” “adequate information” re “nature of case” and the “damages or injuries sustained by the client” Gross recovery amount includes amount of fees and expenses withheld Interpretive Comment 26 (December 2005)

17. Firm Names Firm names and letterhead (Rule 7.01) No trade names: “Smith Law Center” or “Smith Law Clinic” “Legal Sharks” Only names of attorneys, deceased/retired members, and “PC” “LLP” or the like Proper acronyms now permissible See Interpretive Comment 28 (June 2008) OK: Jones, Smith & Miller = JSM, LLP Not OK: Willis, Ivers & Nelson = WIN, LLP Cannot advertise under trade name URLs are not firm names Can’t hold out non-partners as partners

18. Common Issues Other frequently-arising issues: Designation of location of principal office No actors to portray lawyers/clients No stock photography or clip art with actors No “spokespeople” to evade the Rules No more “not certified by the Texas Board of Legal Specialization” OK: “limits practice to” or “focuses on”

19. Rule 7.04 Advertisements in the Public Media – continued Cannot use an actor as a spokesperson Where implication is that person is a client or lawyer of the advertising firm. Must state audio ably and on screen for at least five seconds that the person is a spokesperson for the firm.

20. 7.01 (a)(e) 7.04(g) 7.02(a)(2)

21. Common Issues Other frequently-arising issues: Must disclose any cooperative arrangements Disclaimers must be equally prominent ARC can seek substantiation of any claim Cannot accept/continue employment where obtained in violation of TDRPC Non-filer fee is $300.00 Failure to file is a violation of Disciplinary Rules

22. Conclusion To be a successful Committee member: Attend meetings Read materials before the meeting Be familiar with the Rules and Interpretive Comments: Our job is to apply the Advertising Rules to Attorney Advertising We attempt to protect the public from false, deceptive or misleading advertising by attorneys

23. Conclusion - continued To be a successful Committee member: Per the Bates decision, Attorneys have a right to free speech  Therefore, we can restrict that right only when we have Constitutional and statutory authority to do so We do not regulate the tastefulness of attorney advertising

24. Staff Contacts Gene Major: 512-427-1503 (Direct) 512-913-3814 (Cell) 512-401-3578 (Home) gmajor@texasbar.com Michael Dobbs:512-427-1507 (Direct) mdobbs@texasbar.com Lisa Provoznik:512-427-1505 (Direct) lprovoznik@texasbar.com