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Practice Tips: Do You Advertise? If You do, Let Us See It!

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JUNE 2009
NEVADA LAWYER
PRACTICE TIPS FROM BAR COUNSEL
DO YOU ADVERTISE?
IF YOU DO, LET US SEE IT.
BY GLENN MACHADO, ASSISTANT BAR COUNSEL, STATE BAR OF NEVADA
The state bar reviews lots of attorney advertisements every year. In fact, over 2,000 advertisements have been reviewed since September 1, 2007, when filing advertisements with the state bar became mandatory under RPC 7.2A (Advertising Filing Requirements). In short, RPC 7.2A requires that a copy or recording of an advertisement or written or recorded communication published after September 1, 2007, be submitted to the state bar within 15 days of first dissemination, along with a form supplied by the state bar, which we have cleverly titled the “RPC 7.2A Mandatory Filing Form.” Despite the rule being straightforward and having been in effect for over a year and a half, numerous advertisements are still not filed with the state bar. We often become aware of unfiled radio and television ads when either myself or another state bar employee is approached and asked, “Why aren’t you doing anything about [the attorney’s] advertisements?!?” Sometimes the complaint is that an ad is distasteful. However, due to First Amendment freedom-of-speech concerns in attorney advertising, taste regulation is difficult, if not impossible, to enforce. That is why the advertising rules were changed in 2007 to more closely follow the ABA Model Rules on advertising, which are intended to curtail misleading advertisements. Prior to 2007, it was virtually impossible to provide uniform enforcement for advertising, as no filing requirement existed. We would only become aware of an advertisement if someone took the time to contact the state bar. Now we have mandatory filing, but it only works if everyone complies with the requirement. Otherwise, only those attorneys who take the time to follow the rules are receiving letters from the Office of Bar Counsel when there is a concern regarding their advertisement. In fact, the most frequent referrals of unfiled advertisements come from attorneys who have filed their advertisements with the state bar and subsequently received fix-it letters regarding their ads. They frequently respond by asking why we are telling them to fix their ad, when we are allowing other similar ads, with the same concerns, to run unabated. It often turns out that these ads were not ever filed with the state bar. The attorneys who are not filing their ads are giving themselves an unfair advantage over those who are meeting
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their filing obligation. As such, over the past few months the Office of Bar Counsel has become more aggressive in enforcing RPC 7.2A. Letters went out to non-filers informing them that they had 10 days to file their advertisements, or else a formal grievance file would be opened and we would seek the imposition of both discipline and a fine. Most responded promptly. As for the others, their matters will be presented to the respective disciplinary board in the near future and you could be reading the outcome in our Office of Bar Counsel report in the coming months. The thing about filing the advertisement is that it’s easy. No legal analysis is required. In fact, your nonlawyer assistant can probably fill it out for you, although you must still sign the form. Here’s what you need: Your name (you ought to know this one), address (ditto), bar number (it’s on your bar card), telephone number (check your business card). The form also asks you for the nature of your advertisement; this can be a bit tricky, so here are some hints: if your advertisement features moving images, you probably have a television advertisement. If your ad has sound, but no pictures, it’s likely a radio ad. If the ad is in a thick book with lots of phone numbers and the pages are yellow, it’s a telephone directory advertisement. And you’re just about done with the first page. The second page asks that you identify any lawyers, clients and/or actors used in the advertisement. Unless your paralegal is signing up clients and running your cases, you should have no trouble distinguishing them from actors. Kidding aside, the advertising filing form is straightforward and it would be simply foolish to let your license get dinged for failing to submit an ad. If you need to submit an advertisement, a copy of the filing form can be found online at www.nvbar.org > Rules for Lawyer Advertising > RPC 72.A filing form. And should you have any questions while filling out the form, you are always welcome to contact the State Bar of Nevada for assistance.
GLeNN MachaDo is Assistant Bar Counsel for the State Bar of Nevada. A native of New York, where he also is licensed to practice law, he was admitted to the Nevada bar in 2001. Before joining the state bar in 2004, he practiced commercial litigation and transactional law.

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