By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com
“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog
As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.
I have noticed more and more lawyers are placing their photos in their email signature block. Sometimes, there are awards listed, cute aphorisms, and information that makes them “mini” website banners. This seems like a pretty good idea. So what are the rules for lawyers?
The School of Athens. Perhaps one of the first “selfies” was taken between 1509 and 1511, when Pope Julius II commissioned Italian Renaissance painter, Raphael to decorate a palace in Vatican City. The resulting fresco, The School of Athens, depicts a congregation of the world’s best philosophers, mathematicians, and scientists, from Plato and Aristotle, to Socrates, Pythagoras, Archimedes and Hypatia of Alexandria.
Importantly for our purposes, out of the 52 characters depicted in Raphael’s fresco, the only person looking directly at the “camera,” is Raphael himself. Think about this for a minute, an independent contractor 500 years ago, working alongside the masterpieces of Michelangelo and Leonardo DaVinci, decided to take a “selfie” and plaster it permanently into a wall at the Vatican.
Whether or not Raphael did this to advertise his services, I don’t know. But if we do it today, this would call into question the rules of “commercial free speech.”
Commercial Free Speech. I have this crazy notion, that people would more likely send me business, if they know who I am. Seems to me, not placing your photo and what your do in your email signature is a waste of good space. Although you don’t need permission from the Pope to do it, you would have to get it past licensing boards.
The U.S. Supreme Court case of Bates v. State Bar of Arizona (1977) following the Court’s holding in Virginia State Pharmacy Board v. Virginia Citizens Consumer Counsel, held that licensing boards cannot ban truthful, non-misleading advertising of professional services, on the grounds that commercial speech is protected by the First Amendment. Subsequent decisions follow the Central Hudson test, which held the government can ban false or untruthful speech, but cannot ban potentially misleading commercial speech, if a disclaimer would do the trick.
I remember the days before Bates v. Arizona, when lawyers were limited by ABA model rules, to printing their names in black and gold-leaf, on the storefront window of their shops on main street. There was even a limit how many inches in height the letters could be. Nowadays, no one has a brick and mortar shop on main street anymore. Where else would you put your name, but your signature block? So, what else can you put there?
There are State Bar rules for lawyers (and separate rules for doctors under 22 TAC 164.3 and medical professionals at the bottom of Tex. Occ. Code 102.001), that we must consider.
In Texas, lawyers must adhere to Tex. Disciplinary Rules of Prof. Cond. 7.01-7.06. Which breaks down communications into three categories depending upon intent: (1) “communications,” which are basic, such as letterhead (2) “advertisements” and (3) “solicitations.” The rules become more strict with respect to “time and place,” (the far end of the spectrum being, “barratry” for example, soliciting at the scene of an accident.)
Rule 7.04 requires pre-approval of advertisements and solicitations, but Texas rule 7.05 exempts from advertising “pre-approval” rules, any communication in social or other media that consists “primarily of the type of information commonly found on the professional resume of lawyers.” Which I suppose would cover photographs and basic information in a signature block. If in doubt, you can always obtain prior approval Under Rule 7.04.
One Disclaimer: Whether your photo looks enough like you these days to pass the Central Hudson test for “truthful, non-misleading” speech, well, that’s your business, not mine. (I honestly don’t think the State Bar would touch that with a 10-foot pole.)