The “cargo cults” of legal marketing regulation

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Following World War II, “cargo cults” emerged in the Pacific with the goal of summoning the same material abundance they had experienced during the war. Unaware of the modern world, the islanders that formed these cargo cults believed that by replicating the circumstances associated with the war, they would illicit the same wealth.

Attorney regulators and bar members today often enforce legal marketing regulations in a similar fashion – disconnected from the absence of the harm such regulations were originally designed to prevent.

Josh King, Avvo General Counsel and VP of Business Development, has identified a number of legal marketing “cargo cults” that persist today despite a rapidly changing legal landscape.

Legal marketing Cargo Cult #1: Over-regulation of advertising

State regulators continue to regulate attorney speech at their discretion despite the Supreme Court’s “commercial speech” doctrine which states that such regulations must meet a certain level of scrutiny to be in compliance with the first amendment. State bars also continue to issue ethics opinions that overlook the precedence of the first amendment in interpretation of state advertising rules. Should your marketing efforts ever be challenged by such outdated restrictions, it’s important to understand that attorneys have a first amendment right to advertise (see Bates v. State Bar of Arizona).

Legal marketing Cargo Cult #2: Performance-based advertising

Most state rules of professional conduct and the ABA Model Rules continue to state that attorneys cannot pay another person to recommend their services, despite the Bates v. State Bar of Arizona ruling that attorneys have a first amendment right to advertise. Rather than creating new, post-Bates rules, they’ve simply made exceptions to the outdated, pre-Bates rules. The result has been a framework ill-equipped to regulate the current state of advertising today. The reality is that performance-based advertising, such as pay per-click or per-lead, is simply a more efficient form of advertising. Restricting this or any other type of legal advertising must be justified by the state, and in order to be constitutional it must pass the Central Hudson test.

To learn about more “cargo cults” of legal marketing register for our upcoming free CLE webinar, “The Cargo Cult of Legal Marketing Regulations,” on November 12th, 2015 at 10am PT/1pm ET.

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