Philadelphia Law Firm Sues Morgan & Morgan Over Misleading Advertisements

Rosenbaum & Associates, a Philadelphia personal injury law firm, recently filed a complaint against Morgan & Morgan, a Florida-based personal injury law firm, in the U.S. District Court for the Eastern District of Pennsylvania. The complaint alleges that Morgan & Morgan falsely advertises that it represents clients in the Philadelphia area.

Among other things, Rosenbaum & Associates alleges that Morgan & Morgan’s ubiquitous advertisements in Philadelphia, which contain statements such as “[w]e’re all here for you,” lead consumers to believe that the firm actively litigates personal injury claims in Pennsylvania. However, the firm employs only one attorney in Philadelphia with “little or no experience in handling personal injury matters,” a fact which likely place the advertisements in violation of Pennsylvania Ethics Rule 7.2.

Rosenbaum & Associates’ false advertising claim is also buttressed by the allegation that Morgan & Morgan’s advertisements explicitly state that the firm is “not a referral service.” Yet, the firm allegedly refers nearly all of its cases to another law firm, and fails to inform consumers that their cases will be referred out—a clear violation of Rule 7.2(k), which prohibits advertising that is “a pretext to refer cases obtained from advertising to other lawyers.”

In addition to its false advertising claim, Rosenbaum & Associates also brings a claim against Morgan & Morgan for unfair competition under Pennsylvania common law. The complaint alleges that Morgan & Morgan outspends every Philadelphia personal injury firm in terms of advertising, and the purpose of its “significant advertising budget is to undermine the competition by overwhelming the consumers in the Philadelphia market with false and misleading information.” Rosenbaum & Associates attributes its declining influx of new clients to Morgan & Morgan’s misleading advertisements.

Read Rosenbaum & Associates’ complaint here.

Is Email Encryption the New Reasonable Standard? The ABA Opines

The ever-present threat to data security  in an increasingly digitized legal profession has redefined the  “reasonable efforts” standard for lawyers who handle client information. Nicole Black over at Above the Law offers a good summary of the recently released American Bar Association (ABA)  Formal Opinion 477, which addresses a need for lawyers to increase the security  of electronic communication by using encryption in certain situations to maintain competence and client confidentiality  She also explores New York State Bar Association (NYSBA) updated  Social Media Ethics Guidelines, which acknowledge and address newer state opinions in the realm of social media.

Click on the link below to access Nicole Black’s article from Above the Law and learn more about the potential impact of ABA Formal Opinion 477 and NYSBA’s Social  Media Ethics Guidelines on the legal community.

New Guidelines: ABA On Email And NYSBA On Social Media

The District of Columbia Bar Issues Social Media Guidelines

The District of Columbia Bar is the most recent state bar to issue social media guidelines.

Acknowledging the ubiquitous nature of social media, the D.C. Bar joins the growing chorus of state advisory opinions that suggest that competence requires an understanding of social media.

The D.C. Bar opted to discuss social media in two separate opinions, one opinion focused on marketing and the other opinion dealing with the use of social media in the practice of the law.

The D.C. opinions echo other state guidance in applying the traditional professional conduct standards to the use of social media. In other words, attorneys should employ social media to enhance effective representation without crossing the lines into pretexting or other impermissible conduct. D.C. also adds insight into the impact may have in a regulatory or transactional practice. In the marketing arena, an attorney must adhere to the attorney advertising rules and diligently monitor her social media presence for accuracy and compliance with the rules.

To read the D.C. Opinions, click here and here.

California Releases Final Advisory Opinion on Lawyer Blogs

Recently, the California Standing Committee on Professional Responsibility and Conduct finalized its opinion that analyzes whether attorney-authored blogs should be governed by the advertising regulations. The Committee concluded that blogs should be governed as attorney advertising if the blog directly or indirectly expresses the attorney’s availability for professional employment. Thus, a blog that is a part of an attorney’s professional website or a firm’s professional website is governed by the advertising guidelines.

However, the opinion distinguishes “stand-alone” blogs, which it defines as “a blog that exists independently of any website an attorney maintains or uses for professional marketing purposes.” An attorney may maintain a stand-alone blog that discusses legal topics “within or outside the authoring attorney’s area of practice.” The blog will not be subject to the advertising rules unless the blog “directly or implicitly expresses the attorney’s availability for professional employment.”

Interestingly, a stand-alone blog that discusses non-legal topics (e.g. travel and cooking) is not subject to the advertising rules, even if the blog provides a link to the lawyer’s professional website. “However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the rules and statutes.”

To access the final opinion, click here.

California Interim Opinion Provides Guidelines For Attorney Bloggers

Lawyers who maintain non-legal blogs may preemptively celebrate that their recipe and music blogs would not be considered “communications” subject to California’s attorney advertising rule 1-400 even if they link to their professional law firm pages according to The State Bar of California’s second Proposed Formal Opinion Interim. Still, the generous opinion draws limits, as “extensive” or “detailed” information that identifies the blogger as an attorney and announces his availability for professional hire will trigger the rules, as such information is a communication in itself.

Unsurprisingly, a blog that is built into the lawyer’s or law firm’s professional website is as much subject to the advertising rules as is the firm’s website. However, an attorney’s individual blog, even if it discusses legal topics is not a communication for purposes of the advertising rules unless it implies that the attorney is available for legal employment. This implicit hint can be as subtle as describing the legal services or detailing case results.

Overall, this second proposal focuses on the importance of First Amendment protection to avoid chilling speech on legal commentary, even though the California Bar committee acknowledges that these blogs are motivated at least in part by business development concerns. By interpreting blogs as non-commercial speech where appropriate, the opinion hopes to serve as guidance rather than a strict conversation-chiller.

Read the new opinion here.