As always, before reading this post, please review my disclaimer by following the link above, or by clicking on this link. As always, legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Note: This post was inspired by a question sent to me by "Chris" in response to my "Ask the Lawyer" post. Please remember, you can submit "ask the lawyer" questions to me any time you want. The question I was asked was "Why does your comment policy not allow you to accept comments about the quality of your work, even if they are positive? All I see is a vague reference to the 'Rules of Professional Conduct.'"
Lawyer advertising (and by rule, this blog is a form of lawyer advertising) is subject to many rules put forward by the state bar that go far beyond the rules most other businesses face regarding advertising. The logic behind these rules are that lawyers are a unique form of professionals that customers are at a unique disadvantage in terms of their knowledge of the profession, preventing customers from being able to discern useful versus unuseful information in advertisements and make wise decisions in hiring. Most lawyers I know think this logic is absurd - do clients really know less about how to figure out if a lawyer is any good than, say, doctors, accountants, etc.? But until those of us who feel this way get into positions of power (not likely), these are the rules that are in place.
While there are many very specific rules that I cannot reasonably get into in a single blog post, the general rule is that a lawyer's advertising cannot be "false" or "misleading." The rule against advertising being "false" is fairly obvious - you cannot assert statements that are untrue. This is the same as most industries. The rule against "misleading" advertising, however, is where the rules get convoluted. "Misleading" advertising is generally seen as advertising that asserts statements that might be perceived as factual but cannot be proven, or advertising "likely" to make someone think something they shouldn't think. Finally, there is also a rule stating that a lawyer is responsible for all statements made in a forum he "controls."
"Misleading" Advertising - Subjective Statements
Perhaps the biggest rule in advertising for lawyers is that when talking about themselves or their firm, they pretty much cannot make any "subjective" statements. These are statements about the quality of their work. They cannot say they do "good" work, that they "are great," etc. They can't even say they "specialize" in something, unless they have a certificate of specialization, and then they have to follow up their statement by providing the name of the organization that certified them. This is because the bar is afraid that customers will take these subjective adjectives as some sort of verified truth, and make their decisions based on these statements. This is why lawyer advertising usually talks about things like years of experience, number of cases handled, etc., without really adding anything more.
"Misleading" Advertising - Unexplained Objective Statements
You might think based on the above that if a lawyer makes only verifiably true statements, then he or she is in the clear. This would be wrong. There are also categories of statements that, while objectively true, are considered to be of such character as to still mislead potential customers. For example, I cannot say in this blog (and the following statement is not true, it is just illustrative) "I won a $1 million verdict in court yesterday." Instead, I would have to say "all cases are different and are driven by the facts of the case, so my results in one case do not indicate the results I would get in your case, but I won a $1 million verdict in court yesterday." Basically, we are strictly forbidden from talking about our case results in an advertising context without leading off with a disclaimer.
"Misleading" Advertising - "Vulnerable" Targets
Finally, there's the fact that we can make perfectly valid statements in our advertisements that are still not allowed because of who we make them to. In Virginia, we have a rule (although this is being considered to be changed) forbidding lawyers from contacting people they know were in a wrongful death or personal injury situation to offer to represent them. This is because the bar thinks that these people are particularly susceptible to coercion, and might even think you're offering to "help them" for free. For others that we advertise to directly, if we do it in writing, we have to denote "ATTORNEY ADVERTISING MATERIAL" on the outside of the envelope (if a letter) or at the start of the message (if an e-mail). Again, the idea being that these individuals might not realize we are seeking to be their paid attorneys.
Forums We "Control"
The final issue to address today gets back to the question that sparked this post. Why does all of the above mean that I cannot allow subjective comments on my blog? Well, the bar has decided that if an attorney has the power, in any way, to control what is displayed about them in a particular setting, then the lawyer can be seen by potential customers as "controlling" what is said about them, and subsequently the lawyer can be seen as supporting what has been said about them - and we cannot support statements that are in violation of our advertising rules. In other words, because I can control blog comments, then any comments on this blog could be seen as being my statements, so I cannot allow comments that, if I were to make them directly, would violate our advertising rules. Since I cannot make subjective statements about the quality of my work, I cannot allow comments by others which do the same.
As a side note, this is why websites like Yelp and Martindale-Hubbell are so popular amongst attorneys now. These are sites where we very much do not have the power to control comments, so these are some of the first public forums where people can say positive things about us and have those things stick around for others to see.
Conclusion
This post is essentially a long answer to a short question - why can't people comment about me on my blog? I hope, however, that I have helped you understand why attorney advertising often looks very strange and very different than other types of advertising. If you would like someone to represent your legal needs, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.
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