Masters of the art of deception include magicians, real estate sales people, advertising executives and of course, attorneys.  Ironically, photographers, models and illustrators who work regularly with ad agencies, are often and easily deceived by advertising! One would think that the experience of interacting with Madison Avenue ad men would be an excellent teacher. Wrong. The great ad man Jerry Della Femina put it well when he said “There is a great deal of advertising that is much better than the product. When that happens, all that the good advertising will do is put you out of business faster.” Amen brother.

Most attorneys, like any business, want more business. Only in the last few decades have they received permission to legally advertise their services. Many laypeople who view attorney websites assume that their contents are somehow more reliable than websites promoting items such as nutritional supplements or jeans. Well, not exactly. While buying jeans based on a website ad from a reputable manufacturer places the buyer at minimum to no risk – you can probably return the jeans for a refund, nobody but nobody ought rely solely on attorney advertising to make a selection of legal counsel. If an attorney/law firm does not maintain a website  some prospective clients view that – pun intended – as a negative. Ed for reasons too numerous to list here, quotes the Gershwin Bros. by saying, “It ain’t necessarily so”.

Each state or Bar Association has its own rules on what attorneys must, may or can’t put in their ads. The Federal Trade Commission has some input as well. To keep the subject somewhat manageable we have selected from the NY standards some of the more common rules which most states employ when it comes to attorney advertising. The numbers below are in no particular order and while likely apply in your state, are not universal.

1. Attorney advertising, ie a law firm website which is seeking clients (virtually all of them do) must state on the site, “Attorney Advertising”. Simple enough. If you don’t see those two words on a site buyer beware.

2. Attorneys practicing in New York are required to have an office in the state of NY. Not a PO Box, not a favorite booth at the “Goodfellas” diner or a table at a Starbucks. A real office does not mean that an attorney could not have a portion of his/her house or residence, serve as an office. Some attorneys have offices in multi million dollar brownstones others in perfectly ordinary suburban homes not unlike the neighborhood dentist. Attorneys should have certain “key” factors in maintaining a real office: someone to greet guests and to handle drop in people, identify priority deliveries, notify the attorney if needed in the event the attorney is not on premises, private places to hold confidential meetings when needed, desk space to work, having someone to serve as an agent for the physical service of process or legal papers if the attorney is not on premises, a secure area for files not accessible to those who do not work with the attorney. And (drumroll) the number one requirement required by the State of New York…. a physical street address.

3. No statement or claim may be false, misleading, deceptive or violates any disciplinary rules.  The most common misleading statements we see are:

• We handle/represent more (type of case) than any other firm; There is no way to know whether such claim has any validity as firms are prevented – even if disposed to doing so – from naming every client and every claim or case they have ever had in a particular field.
• “We successfully settled….” No such animal. If Ed’s client would agree to settle for 50k but the other side wound up paying 100k to settle, was that firm “successful”?  Happens all of the time. There is simply no way to know whether a case was “successfully settled”. That term carries as much weight and is as meaningful as “Best Pizza in Town”.

4. An attorney advertisement cannot:

• Include an endorsement or testimonial from a client about a case still pending without informed consent from that client. Ed’s view is akin to Yogi Berra’s, “It ain’t over till its over” rendering such a testimonial during a litigation is just plain dumb and besides the judge hearing the case just may call in the lawyer for a “chat”;
• Use of testimonials by paid endorsers without disclosing that they have been paid;
• Use of (think stock) images of non lawyers, non judges and/or non clients portraying others without being so labeled;
• Use documents which appear to be “legal” but actually only resemble such documents.

5. What may/should be included in the ads:

• Biographical information about each attorney at the firm including educational background, bar admissions including dates. Some believe the absence of the foregoing is enough to press the “delete” key. Teaching positions, publication actually authored or co-authored and public positions held currently or in the past. Most former judges will not omit that tidbit in their bio. On the other hand a former local tax collector now practicing personal injury law might not want that prior job listed.
• Listing cases of public record by name, court and docket number so that a reader may look at the prior work of the attorney, which is part of the public record, and so you know who he/she represented and/or sued.
• Listing of Bar Association memberships, awards, and names of clients who have given consent to the use of their names are all fine and dandy.
• Foreign language fluency. On a serious note, there are attorneys whose fluency in English or ability to be understood by others in English may be a factor. If your primary language is Greek and you are more comfortable with an attorney which whom you can converse in Greek, fine. Make sure however, that the lawyer(s) handling your case can be understood clearly in English. Unlike witnesses, lawyers aren’t typically entitled to translators in court. Trial judges who can’t understand what a lawyer says in a Federal courtroom are loathe to admit it more than once.
• Ownership of non-legal companies ie that Sally Lawyer also owns the coffee shop across the street from the courthouse or a custom motorcycle dealership on the other side of the state. Some lawyers disclose such ownership(s) others do not. Sometimes the information is relevant in determining whether there is a potential for a conflict of interest depending on who is suing whom. Sometimes it may be relevant to your case. Sometimes it is totally irrelevant.

6. Only under very defined and narrow circumstances can lawyers advertise or make statements which create an expectation about the results he/she can achieve. Every case is different. The facts are never the same nor are the parties from one case to another. Yes, Ed has had cases where the parties were the same, the photo at issue was the same, but the facts were different. Predicting outcomes in ads is in and of itself proof of the variation on Einstein’s theory: “The world is made up of electrons, neutrons, protons and morons”.

7. Ed’s Rule. To emphasize a point stated earlier, if each and every attorney in the firm is not clearly identified by name, bar admissions, background and educational credentials do not use the firm. Imagine a hospital which refuses to disclose the names, certifications and educational backgrounds of its doctors. You can’t. Nuf said. This is a common practice. You will see a website titled in such manner as to omit the name(s) of any lawyers ie “Zippy Law” and their site omits the name(s) of any lawyers.  Move on!  This is a common feature of online search and settle firms, which typically have no attorneys on staff and are conveniently located in the EU or other far off places and imply knowledge of American copyright law.

So what to do if you’re completely puzzled over hiring an attorney for your issue? In our opinion, the best method to secure an IP lawyer is to get a referral from a local practicing lawyer, judge, or law professor who teaches copyright law at the law school closest to where your live.  Reputation is everything. Your lawyer must be familiar with the practices and judges of the local federal court in which your case could conceivably be heard if not settled.  Beware any attorney who is either quick to settle or can’t wait to sue before acquiring sufficient information to make that decision.

Many attorneys who have never handled photography or modeling related cases may be competent attorneys but have no idea what your case might be worth at any stage. That smell of desperation is the second most palpable one to a judge. Worse is a soiled legal reputation. That odor enters the courtroom as soon as papers with such a lawyer’s name on them are filed. In such instances it is the client who pays the price.  Like it or not, the case commences with a judge imbued with inherent bias which is usually, but unfortunately, justified.

Finally remember and don’t forget we are talking about advertising!  In our book, in our lectures, videos and blog we make suggestions on how to hire a lawyer. This piece is targeted only to attorney’s websites which again, must never be used to determine which attorney to hire.