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Firm Promotional Items: Where’s the Evil?

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We recently received an offer to have our law firm name and phone number printed on these nifty pens that also had a flashlight on one end.  So I ordered 50, primarily to use at the office and give to friends and family.  It never occurred to me that I should be careful about who received these pens.  When a question arose from a client about whether promotional items (think pens, key chains, mugs, etc.), containing just the firm’s name, could be given to current clients, my gut reaction was, “Sure, why not?”  What evil could come of giving such things to persons who were already clients.  But because there is a Rule of Professional Conduct that says all advertisements must contain the laywer’s or law firm’s address on them, I thought, I’ll just run this question by the Bar.

I was surprised when the answer was, “we don’t have an answer,” and you’ll need to submit the question to the Ethics Committee for disposition.  This means that there is a chance that by allowing a client to take one of the pens from our office, a pen which does not contain our office address, we could be running afoul of Rule 7.2(c).  (If anyone has taken a Brocker Law Firm pen from our office, could you please return it?)  OK, this just seems silly to me.  Let’s look at the purpose of this rule.  The requirement that advertisements contain an office address is so the potential client is not misled as to where the lawyer is located.  We don’t want a lawyer with an office only in Charlotte advertising in Raleigh that he can handle cases in Raleigh without disclosing that he only has a Charlotte location.  People often want to hire a lawyer close to home, especially if they will need to meet with the lawyer at his office during the representation.  This makes sense to me.

Now suppose one of our nifty pens fell into the wrong hands.  Suppose a pen left our office with a current client (who already knows where we are located, by the way), and that client dropped the pen on the street or gave it to a neighbor.  I can’t imagine a pen with our firm name is going to convince anyone to hunt us down to hire us, not knowing what we do, where we’re located, or whether we’re still in business.  The pen is not advertising our services, any more than t-shirts listing a law firm sponsor for a Komen Race for the Cure team.  The sponsoring of events appears to be a limited exception to the Rule 7.2(c).

As you can tell, I think common sense should dictate that firms can have “promotional items” without their office address, and should be able to give such items to current clients.  I just don’t see the evil here.

(As of September 2012, there is an inquiry currently pending before the State Bar on this topic, but no opinion has been issued yet).