Notice: This guide is merely informational and does not constitute legal advice. For attorney ethics advice, contact an ethics attorney or your state bar association ethics hotline.
Regardless of what type of criminal defense marketing you're considering, you’ll definitely need to think about how your advertising interfaces with your state’s bar rules. Though most state bars have rules regarding what you can put in your advertisements, this guide will focus mostly on how you can advertise your criminal defense practice.
Passive Criminal Advertising vs. Direct Criminal Advertising.
When considering where you’ll place your ad dollars, there are two main avenues for criminal defense marketing: Passive Advertising and Direct Advertising.
Passive criminal defense marketing can be both digital and non-digital. For example, one attorney may choose to advertise using Google or Facebook ads while another lawyer may pay for a billboard on the side of the freeway. In both cases, these methods of criminal defense advertising are passive because they are not directed towards any one person in particular, but rather the general public as they require the prospective client to contact the criminal defense attorney affirmatively.
On the other hand, most states consider an advertisement direct solicitation when an attorney directly communicates to someone known to be in need of legal services first. Here, there are typically strict rules pertaining to how each lawyer can or cannot directly advertise to prospective clients.
How can I advertise to prospective clients directly?
Though criminal defense marketing rules can vary between states, a common theme we see in the rules regarding solicitation of clients is that attorneys are not allowed to advertise for criminal defense via “Live Person-to-Person Contact”. For example, lawyers generally can not call persons known to be in need of legal services in order to offer representation–– by the same token, lawyers are prohibited from approaching recently arrested individuals at their homes to do the same.
However, most states allow for direct solicitation that is not “live person-to-person contact'', but instead “easily disregarded”. One classic criminal defense marketing example of such solicitation is the typical Direct Mail Campaign, also known as “Jail Mail”. When an individual receives a piece of mail from a local criminal defense attorney following their arrest, such solicitation does not typically involve coercion or harassment–– if the prospective client is interested they can call the attorney and if not, they can throw the letter away. Most importantly, the prospective client has had an opportunity to contemplate their decision to retain counsel without outside pressure.
While not all states explicitly address electronic communication such as email and text in their state-bar rules, the principle is more or less the same. For example, an attorney using the Client Connect Software may send an arrested person an email or text immediately following their arrest. In this case, the prospective client can call the number on the advertisement to speak with a criminal defense attorney. If they aren’t interested, they can unsubscribe from the text or email list as well as delete it. If they do so, they will not receive any further criminal defense marketing through that channel. Just as with direct mail, they’ve had an opportunity to review the solicitation, contemplate it, and have not been pressured to retain counsel.
State-by-state Advertising Resources
Though the principles above hold true for most states, there can be slight variations. For example, some states like Arizona require attorneys to mark their criminal defense advertisements with the word “Advertisement” while others do not. Similarly, states like Texas require the initial text message to notify the prospective client that replies will not be received in order to prevent live-person-to-person contact.
Criminal defense attorneys are encouraged to perform their own due diligence on their state’s bar rules. To that end, we’ve put together a handy list that references the rule on direct solicitation of prospective clients for each state in our current service area.
Rule on Direct Solicitation of Prospective Clients (See pg 196)
Rule on Direct Solicitation of Prospective Clients (See pg 101)
This article only provides information regarding state-bar rules that impact criminal defense advertising. Criminal defense advertising sent via email and text may also be subject to other relevant federal and state marketing laws.
Be sure to check out our other criminal defense marketing guides!