There are many ways that lawyers can build reputational trust with potential clients—awards, lectures, and publications can all speak to a professional’s credentials when establishing the lawyer-client relationship.
You may be thinking that highlighting your client list or publishing a testimonial may also be useful for demonstrating your professional experience. While this is certainly a strong marketing tactic that can confer social currency in many circumstances, for legal professionals there are a number of things to consider as legal marketing has its own set of rules when it comes to promoting your practice.
Section 4.2 of the Law Society of Ontario’s Code of Professional Conduct outlines the responsibilities of lawyers who engage in marketing to promote their practice. The Code suggests that lawyers must tread carefully when representing their work to the public. The code state that “using testimonials or endorsements which contain emotional appeals” may violate the Society’s rules on marketing.
Why would one need to avoid this kind of endorsement? Much of the LSO’s guidelines on marketing centre on the accurate representation of a lawyer or law firm. Section 4.2.1 states:
“A lawyer may market legal services only if the marketing
(a) is demonstrably true, accurate and verifiable;
(b) is neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive; and
(c) is in the best interests of the public and is consistent with a high standard of professionalism.” (Law Society of Ontario, Rules of Professional Conduct § 4.2-1)
The code is very specific that lawyers should avoid making promises based on past performance, as court cases are unique and, for this reason, any result is non-transferable. It follows that, because an emotional appeal from a particular client may not represent the general client experience, such marketing is considered subjective and unverifiable. For this reason, lawyers should avoid this marketing tactic.
Client List & Matter Representation
Endorsements and testimonials are one gray area of legal marketing, but certainly not the only one you need to watch out for. Legal professionals should also tread carefully about how they disclose their client list and talk publicly about cases, as the relationship between lawyer and client, as well as case details, are considered confidential.
The Law Society of Alberta’s Professional Conduct recommendations reminds lawyers that they have a duty to their client and should always obtain the consent of the client before including the client or any related cases in marketing or promotions:
“Many law firm websites include the names of clients and matters on which the lawyers have acted. Details of client identities or retainers are confidential, and lawyers must seek client consent before posting such information in any advertising. Even if the client’s identity is not explicitly divulged, other information in the narrative may reveal the client’s identity or, worse yet, the lawyer’s advice to the client.” (Law Society of Alberta, Professional Conduct § Ethical and Effective Advertising)
It follows that lawyers should take extra care to gain client permission before discussing pertinent legal matters and heed any concerns about confidentiality that might be raised during the lawyer-client relationship to ensure abiding by professional guidelines.
What does this mean for your law practice? First, you should always be cautious when using clients and cases as a resource for marketing and promotion. In addition to the potential to make misleading claims, legal professionals can find themselves inadvertently violation of the client confidentiality.
The best practice is to always seek permission from your client before making any public statements about a case, past or present. Clarify to your client how you plan to use their information and establish clear boundaries around what information can and cannot be shared with the public. Regardless if you have this discussion at the outset of the engagement or somewhere further down the road, it is important to ensure that all parties are clear on the extent to which information can be disclosed for marketing purposes.
You will want to verify the code of conduct in your specific jurisdiction to ensure that you are adhering to your local professional standards. But smart lawyers will focus on the core principle at hand—establishing trust in the lawyer-client relationship—and conduct themselves accordingly when it comes to using client endorsements in their marketing.