Advertising Committee also holds solo lawyers may refer to themselves as ‘we’ in advertising
Lawyers may join an organization that promotes networking between professionals, although they must be careful that their activities do not violate Bar rules.
The Standing Committee on Advertising made that decision June 27, when it also reversed previous advertising decisions by saying that a solo practitioner can use the word “we” when referring to his or her practice without being misleading.
The networking organization, BNI (Business Network International), raised concerns among Bar staff, although most said membership would not violate Bar rules.
“There is a potential for solicitation and potential for conflict of interest if a lawyer is referring to another person they met through BNI that is not in the client’s best interest, but it’s in the lawyer’s best interest because he gets more referrals,” said Bar Ethics Counsel Elizabeth Tarbert.
Another concern, she added, was whether BNI operated as a referral service, which means it would have to comply with Bar lawyer referral service rules before lawyers could join a BNI chapter.
Joe Corsmeier, representing the company, said BNI was not a referral service and likened it to civic groups where lawyers might receive referrals by joining. He said BNI rules specifically require members to follow the ethics rules of their various professions.
But Mike Faehner, chair of the committee, said he knew of two different local BNI meetings where members were encouraged to exchange referrals and prizes were given for making referrals — practices that would violate Bar rules.
Ed Bylick, also representing BNI, said those activities should have been prohibited under BNI rules and policies.
“I’ve been an attorney for 22 years and I have yet to have someone just walk into my office and say, ‘Oh, you’re an attorney. Can I hire you?’” he said. “I think every matter that I’ve ever worked on has come through a relationship. All BNI tries to do is help the members learn how to network a little better and build relationships.”
The committee voted 3-0 that joining a BNI chapter would not violate Bar rules as long as the participating lawyer did not personally solicit cases or make referrals to another professional as a quid pro quo for getting referrals.
On the solo practitioner issue, Tarbert reminded the committee that the Bar Board of Governors has set a policy that sole practitioners cannot refer to themselves as “we” in an ad because that implies more than one lawyer works at the firm. But Faehner said he thinks that is wrong because the “we” could accurately refer to a single lawyer and his or her nonlawyer support staff.
The rest of the committee agreed and voted 3-0 to overturn the staff’s rejection of the attorney’s ad. That decision may not end the matter. While there will not be a formal appeal to the Board of Governors, the committee’s vote will be reported to the board, which could take further action.
On another issue, the committee overturned a staff rejection of a bankruptcy firm that wanted to use this phrase in its advertising: “Come in today, you may be debt free tomorrow.” Tarbert said the staff felt it was misleading because the debts couldn’t be discharged for some period of time, even if the discharge was retroactive to the date a bankruptcy petition was filed.
Richard Feinberg, representing the law firm, argued it was an accurate statement. In most cases, he said, the firm can file a bankruptcy petition no later than the next day after a new client comes in, and in most cases there are no objections within the 90-day period following the filing and the debts are discharged back to the date of the filing.
“It is an accurate and true and correct statement of the law,” Feinberg said. “The reality is absent an objection, which is extremely rare . . . all the debt that arose prior to the filing of the case will be discharged and eliminated.”
The committee voted 3-0 that the language is not deceptive or inherently misleading about the services the firm offers and 2-1 that it is accurate and not misleading to a consumer about material matters.