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Local bar association sends direct mail ads for lawyers

Peter Vieth//July 3, 2014

Local bar association sends direct mail ads for lawyers

Peter Vieth//July 3, 2014//

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LettersIf you get a speeding ticket in some parts of Virginia, you can count on receiving a handful of letters from lawyers offering their services.

High-volume traffic ticket areas – some simply call them “speed traps” – produce a high volume of work for courthouse lawyers and companies that provide mailing lists for the alleged offenders.

One recent advertising pitch carried a return address from the Brunswick County Bar Association, a local bar group in Southside Virginia.

The letter could raise some ethical and legal questions, observers say.

But the president of the BCBA says the letter has been approved by the bar and reflects an effort to compete – in a dignified way – with other lawyers using direct mail.

Local lawyers named

“This letter is to let you know that there are two (2) law firms located in Brunswick County, Virginia, each of which has extensive experience in our local traffic courts,” the undated bar association letter reads.

“The attorneys in these firms live and practice in this area and are knowledgeable of the procedures and are familiar with the personnel in Brunswick County Court system,” the message goes on.

“Each firm has a policy of free telephone consultations with respect to traffic citations and each is capable of providing excellent representation at competitive rates,” the letter says.

The firms apparently have settled on standard rates.

“Fees for simple speeding start at $125.00. Fees for reckless driving start at $200.00.”

The letter identifies three lawyers practicing at the firms and provides addresses and contact information.

The letter carries a bar association letterhead and signature and adds the term “ADVERTISING MATERIAL” at the bottom.

Despite several Internet searches and inquiries among knowledgeable lawyers, the Brunswick letter is the only example identified of a bar association doing direct mail advertising for its members.

“I’ve never heard of that,” said Matt Smyers, owner of a Richmond legal marketing firm.

“I’ve never seen anything like that,” said McLean lawyer Thomas E. Spahn, who has written and lectured on ethics and professionalism.

It may not be common, but such bar association advertising is done in some quarters, said R. Clinton Clary Jr., the president of the Brunswick County Bar Association and one of the lawyers listed in the advertisement.

What makes the BCBA letter unique is the small size of the local bar, Clary said. There are only two firms that make up the membership.

Neither firm engaged in direct mail until about 10 years ago, Clary said. Then, the local lawyers noticed a lot of outside lawyers appearing on court days, representing clients they found through advertising letters.

“We didn’t think it was the most dignified way of advertising,” Clary said, but the local lawyers wanted to be able to compete.

“We decided the most economical and dignified way was to send a joint letter on behalf of the Brunswick County Bar Association,” he said. “We felt it was something we had to do to survive.”

Clary said the letter used at the time was approved by the Virginia State Bar. A minor change was made last year to accommodate a change in the rules for lawyer advertising.

Clary said a recent complaint to the VSB about the joint letter was dismissed and the letter now in use has been approved by the bar.

“We still think our letter is a very professional and dignified letter,” Clary said.

No one contacted thought the letter was a clear violation of any rule or law, but several said it raised questions.

Spahn said it is possible the letter might run afoul of a rule against paying for endorsements.

Under Rule 7.3 (b) of the Virginia Rules of Professional Conduct, a lawyer generally “shall not give anything of value to a person for recommending the lawyer’s services.”

The first listed exception, however, is paying the reasonable costs of advertisements or other allowed communications.

“If this is an advertisement, that’s one thing, but this looks like an endorsement,” Spahn said. The rule bars a quid pro quo arrangement of payment for endorsement, he said.

Spahn questioned whether the joint fee schedule would implicate antitrust laws, but acknowledged no expertise in that arena.

Virginia State Bar Ethics Counsel James M. McCauley declined any comment on the bar association advertising scenario.

Clary has practiced for more than 30 years as both a prosecutor and defense attorney, according to his Lawrenceville firm’s web page.

Competitors of the Brunswick lawyers seemed to have no problem with the bar association advertisement.

Joseph E. Taylor Jr. of Mecklenburg County said the two firms listed in the letter are the only two in Brunswick County, and he sees those lawyers in court on a regular basis.

“As a competitor, I don’t have any objection to the letter,” Taylor said, adding, “They, frankly, provide the services they profess to provide.”

R. Edward Railey III in nearby Southampton County said he was familiar with the BCBA letters. He said he was under the impression the bar association alternated the order of firms in the letters.

Direct mail remains effective, despite image

Direct mail marketing carries a certain stigma, but it seems to get the job done for some lawyers, Smyers said.

While Smyers advises his law firm clients to skip the direct mail technique, he said a lawyer recently told him he sees the same lawyers at traffic court all the time, lined up to handle cases.

“They do it because it works. Does it appeal to everyone? No. Is it a turn off to some people? Absolutely,” Smyers said.

Lawyers considering direct mail have to weigh the business boost against the potential tarnish to their image, he said. He counsels against it.

“Brand and brand perception is much more important to me and my clients,” he said.

Smyers said if a marketing client were considering using direct mail advertising, “the first thing I would do is urge them to call the bar to make sure the message meets the regulations.”

Spahn agreed with that strategy.

“We’ve got the most responsive ethics hotline of anywhere in the country,” Spahn said. “They really know their stuff.”

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