When Others Prepare the Communication

When Others Prepare the Communication

Lawyers seldom build every advertisement themselves. Firms hire agencies to produce broadcast spots, publicists to place stories, and designers to build websites, and none of that changes the identification duty. Rule 7.2(d) says the communication “must include the name and contact information of at least one lawyer or law firm responsible for its content,” and it does not make that requirement depend on who drafted, designed, or placed the message.¹ A vendor may build the communication. The name on it must still be that of a lawyer or firm, because a lawyer or firm is the party who answers for what it says.

Paying the vendor is lawful, though the route to that conclusion runs through a prohibition. Rule 7.2(b) bars a lawyer from compensating, giving, or promising anything of value to a person for recommending the lawyer’s services, subject to listed exceptions.² The first exception lets a lawyer pay “the reasonable costs of advertisements or communications.”³ Without it, a newspaper or broadcaster paid to run an advertisement could be called a person paid for putting the lawyer’s services before the public, and the right to advertise would mean little if lawyers could not pay for it. The exception covers the familiar media: a lawyer may pay for directory listings and for newspaper, television, radio, and internet advertising.⁴ Comment 5 to Rule 7.2 adds that a lawyer may compensate people “who are engaged to provide marketing or client development services, such as publicists, public-relations personnel, business-development staff and website designers.”⁵

That permission buys services, and it does not buy an exemption from the rules. A lawyer remains bound by the restrictions on how to advertise and solicit, so the lawyer may not hire another person to do advertising or solicitation that the lawyer could not do directly.⁶ A lawyer or law firm must also take personal and identified responsibility for any advertising it disseminates.⁷ The reasoning follows from the consequences. If a vendor could put a message before the public with no lawyer answerable for it, the person who actually controls the message would sit behind a commercial intermediary, and a paid third party tempted to break the advertising rules would be hard to catch, because the trail would end at a business that the professional-conduct rules do not reach.⁸ Naming the lawyer or firm keeps responsibility with a licensed professional who is subject to discipline, so a violation can be traced to someone the rules do reach.

The worry behind these rules is old. Before 1977, most states banned lawyer advertising outright, and part of the objection was that promoting legal services like any other consumer product was considered inherently deceptive to the public.⁹ Advertising is now permitted, and the identification duty ensures that a lawyer or firm still stands behind each message.

The tempting error is to treat delegation as a handoff of the duty: the lawyer paid the designer, the designer published the site, so any defect belongs to the designer. Two scenes show why that fails.

The site fails because of what it displays, not because the lawyer paid a vendor. A firm that outsources far more heavily can still comply.

Both scenes involve outsourcing, and in both the vendor’s fee is lawful. What differs is whose name appears on the communication and who stands behind it. The vendor’s role in producing the message therefore never changes the Rule 7.2(d) question: does the communication name, with contact information, a lawyer or firm responsible for its content? The same logic governs the content itself. A lawyer who could not publish an advertisement directly cannot publish it through a vendor, because by disseminating the vendor’s draft the lawyer has made it the lawyer’s own advertising.¹⁰