Have personal injury law firms 'jumped the shark' when it comes to advertising?

A. Vince Colella
Moss &?Colella P.C.

Prior to 1977, lawyers were not permitted to advertise in newspapers or other media. However, the prohibition on advertising was challenged in Bates v State Bar of Arizona, 433 US 350 (1977). The challenge arose from a newspaper advertisement by a law firm offering “legal services at a very reasonable rate.” Justice Harry Blackmun delivered the majority opinion upholding the law firm’s First Amendment right to advertise. In his opinion, Blackmun concluded that legal advertising was not “inherently” misleading. He determined, “...though advertising does not provide a complete foundation upon which to select an attorney, it would be peculiar to deny the consumer at least some of its relevant information needed for an informed decision...” Clearly, Blackmun recognized the benefits of offering legal services to those who shied away from seeking a lawyer for fear they could not afford one. A noble premise in the moment.

Since that time, personal injury lawyers have inundated the public with television, print media, billboards, and on-line advertising at an alarming volume. We have also seen an emergence of cottage industries. Peer review rating systems, on-line legal directories, and SEO optimized digital marketing campaigns have become all the rage. Have lawyers gone too far? The answer is simple. Follow the money. According to legal marketing specialists, the two most expensive key words on Bing are “lawyer” and “attorney.” In fact, specialized Google Ad words such as “car crash lawyer” or “best injury lawyer” can cost as much as hundreds of dollars per click.

Some estimate that law firms can easily spend up to $50,000 to $100,000 per month on pay per click. In Michigan, the market has become so saturated with personal injury law firms vying for on-line visibility that lawyers have engaged in joint marketing efforts with medical affiliates. Generic “trade names” emerged on billboards and on-line; some of which have caught the eye of the State Bar.

While the Michigan Rules of Professional Conduct have long held that lawyers may not use any form of public communication that is fraudulent, misleading, or deceptive, “trade names” raised ethical considerations among critics. After much debate about the nature of these marketing campaigns, the Michigan Supreme Court adopted changes to the rules on advertising. In May of 2019, MRPC 7.2(d) went into effect mandating that a lawyer or law firm advertising under the heading of a phone number, web address or trade name shall “identify the name and contact information of at least one lawyer responsible for the content of the advertisement.” Ostensibly, the amendment was enacted to create transparency between the firm and the public. However, less has been done in terms of enforcing “comparison” advertising prohibited by MRPC 7.1(c). While some lawyers claim to be the “best,” “premiere,” or “top” absent a factual substantiation (or peer reviewed honor), there seems to be little ethical concern over these advertising practices. In fact, superlative ad words can be purchased, thus providing a significant competitive advantage in organic search results. And, while some states prohibit identification as a “specialist,” Michigan has no hard or fast rule other than basing the designation on an “unbiased evaluation of one’s legal expertise.” Predictably, social media marketing is more nuanced and less settled. Unsolicited “real time” communications within social networks (i.e., Facebook, Linked In, and Instagram) are viewed as analogous to direct solicitation under MRPC 7.3 and should be avoided.

The broader question is whether these marketing strategies are effective. More importantly, do they help or hurt the profession as a whole? Legal marketing has largely centered around collective quantification of verdicts and settlements. Dollars over details. Of course, this is not by happenstance. Creating an image that the lawyer has driven the value of a result over the actual injuries and damages suffered by a person is the hallmark of personal injury advertising. Of course, quality results should be publicized and celebrated. However, special care should be taken so as to not create misleading or illusory representations of a firm’s accomplishments.

Lawyers should err on the side of details over dollars. This type of marketing will accomplish both educating the public on the evidentiary characteristics of a quality case and temper unrealistic expectations of prospective clients. If personal injury lawyers continue down the road of digital media and advertising hyperbole, we tarnish the image of the great warriors we espouse to be.

Perhaps it may be naïve to believe that personal injury trial lawyers can shift the marketing paradigm. However, if history has taught us anything, it is that we can be more eloquent and masterful in delivering our message than any other profession.

————

 A. Vince Colella is co-founding partner of Michigan personal injury and civil rights law firm, Moss & Colella.