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Commentary: Do Not Be Misled By Lawyer Advertising

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In 1977 a U.S. Supreme Court decision ruled that the constitutional right of free speech gave lawyers the right to advertise. Before that, ethics rules governing lawyers’ conduct prohibited lawyer advertising in Colorado and in most other states.

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Now, under that U.S. Supreme Court decision and Colorado Supreme Court ethics rules Colorado lawyers may advertise under certain conditions. Those conditions generally include that:

• the advertising materials must not be false or misleading;

• advertising must not make untrue comparisons of the lawyer’s services with those of other lawyers;

• ads must not create unjustified expectations about results;

• lawyers may not make solicitations for business in person unless the lawyer has a family or social relationship with a potential client;

• unsolicited mailed advertising materials must be by regular mail and identify, on the envelope, that advertising materials are enclosed; and

• if the advertising materials pertain to a personal injury or death, the lawyer advertisement must not be sent until 30  days after the event causing the injury or death.

Despite those restrictions, the Colorado public is bombarded with television, radio, billboard, print media and Internet lawyer advertising. Also, a cadre of Colorado lawyers is now included among groups that call themselves “super lawyers,” “best lawyers,” “top lawyers,” etc.  In truth, those are essentially advertising devices (gimmicks?).  Apparently, someone reading one of those airplane magazines noticed ads for things like “Top Steakhouses in America” and came up with the idea of using it for lawyers. 

Judged by the proliferation of those top, best, super and other superlatives, that marketing concept is apparently working.

The clue to these super, best, top lawyer designations is that the name of the group is usually followed by a circled “R” indicating that the assemblage has a registered trademark. The public has little chance to learn how lawyers are included in those groups.

The competition among lawyers appears to have become so fierce that some are said even to have hired someone to go through court records to find newly filed cases. They then send advertising letters to the parties who have been sued, offering their services and soliciting business.

It’s probably not a good idea for people to choose lawyers based upon their advertising or designation by membership in some promotional organization. Better yet, people needing attorneys should get references from friends, relatives, colleagues and others and then interview several prospects to determine their abilities and compatibility.

Fee arrangements are also important, but parties should be aware that hourly rate arrangements may be misleading. Lawyers who have substantial experience are likely to take less time than less experienced lawyers handling the same matters—although at lower hourly rates.

I have somehow been designated a “super lawyer” (without paying a dime for the “privilege” and was invited to be among another “best lawyer” group (I declined to pay the membership fees).

However, I am waiting to be invited to be among the “Best Looking Lawyers in Denver.”  Maybe someday—but I doubt it.

Albert B. Wolf is a principal in the Denver law firm of Wolf Slatkin & Madison P.C.

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