CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘advertising’

What Are The Ethical Rules For Legal Blogs In California?

Posted on: February 1st, 2019

By: Greg Fayard

If you are a California lawyer and are thinking about starting a blog, keep these points in mind:

  1. Blogging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.
  2. A blog that is an integrated part of an attorney’s or law firm’s website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.
  3. A stand-alone blog by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney’s availability for professional employment.
  4. A stand-alone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising and is not subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the ethical rules and statutes.

See California Rules of Professional Conduct 7.1 and 7.2 and Business and Professions Code sections 6157-6159.2; State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion Interim No. 12-0006.

If you have any questions or would like more information, please contact Greg Fayard at [email protected].

Working Without a Net

Posted on: September 14th, 2018

By: Seth Kirby

For the legal professional, careful and appropriate selection of insurance is an essential component of practice management.  When faced with potential liability for an alleged mistake, attorneys should want the safety and security of relying upon their insurance carrier to help mitigate the potential liabilities that accompany their practice.  Unfortunately, many attorneys do not see the gaps in their insurance coverage until they are faced with a claim arising from their business activities.  A recent unpublished decision by the 4th Circuit Court of Appeals is illustrative of this dilemma.  In Hartford Casualty Insurance Co. v. Ted A. Greve & Associates PA, case number 17-2407, in the U.S. Court of Appeals for the Fourth Circuit, the Court affirmed a general liability carrier’s denial of coverage to a personal injury law firm that was sued for alleged violations of North Carolina’s Driver’s Privacy Protection Act.  Apparently the firm had been obtaining crash reports from the state’s Division of Motor Vehicles and then using the information contained in those reports to solicit business from the involved drivers.  When faced with a class action lawsuit arising from these activities, the firm’s general liability carrier denied coverage on the basis that the claims were excluded as they arose out of a violation of a state statute.  The Court approved the denial, rejecting the firm’s contention that the claim could be viewed as a common law invasion of privacy.

This decision has very little significance outside of the unique facts of the case.  Indeed, it is conceivable that the firm at issue in the case may have other types of coverage that fill this gap.  Nevertheless, it serves as an important reminder that firms should carefully review all aspects of their operations and consider whether their particular areas of exposure are covered.  Does the firm engage in novel or unique advertising to solicit business?  Does the firm use litigation financing to assist in pursuing claims?  Does the firm have potential contractual exposure because it is acting as a title agent?  These are just a few of the questions that lawyers must consider when evaluating their risk profile and in determining the nature and extent of insurance products that they should purchase.  Frankly, this task is too difficult, and the consequences are too severe, to attempt without professional assistance.  A meaningful relationship with a qualified insurance broker that specializes in professional liability placement is an invaluable resource for law firms.  The broker can often spot risks that the firm is blind to, and they are certainly more familiar with the insurance products that may provide valuable protection to the firm.

It is impossible to accurately predict what the future holds, but careful examination, and regular reexamination, of a law firm’s business model can go a long way toward identifying the dangers that lie ahead.  Absent such careful planning, lawyers are literally working without a net and potentially setting themselves up for drastic financial consequences in the event of an alleged error.

If you have any questions or would like more information, please contact Seth Kirby at [email protected].

Are Your Facebook Job Postings Violating the ADEA

Posted on: February 8th, 2018

By: Brenton S. Bean

So say putative class action plaintiffs in the Northern District of California.  See Communications Workers of America et al v. T-Mobile US, Inc., et al, Case No. 5:17-cv-7232 (N.D. Ca), filed Dec. 20, 2017.  Plaintiffs assert that Facebook has become the modern employment agency, providing not only a platform, but also data and strategies to help employers find candidates.  The lawsuit alleges that Facebook allows, and in some instances requires, a target audience be defined, which includes age restrictions.  In addition, Facebook uses its own massive database and algorithms to determine which users will see the ads, often on the basis of age.  This practice of “microtargeting” advertisements for employment discriminates against older workers, plaintiffs say.

Shortly before the lawsuit was filed, the New York Times ran an article regarding Facebook advertising and age discrimination.  Facebook and other social media sites have recently become more popular means by which employers advertise for job openings.  The Times story indicates many companies use Facebook’s ability to target its users by demographics, such as age, and therefore have discriminated against job applicants by restricting the scope of their Facebook ads to younger Facebook users.  Interestingly, that use of an age restriction is not always limited to cases where the advertiser requests such a restriction.  Facebook also takes the parameters identified by the employer and uses its own statistical methodologies to target the ad.  That means age restrictions may have been used in advertisements without the advertiser’s knowledge, according to the claim.

The scope of the case is potentially enormous.  First, the putative class size is immense.  The class as defined includes all Facebook users nationwide who are age 40 and older, who are interested in receiving employment-related advertisements or recruiting from employers via Facebook, and who were excluded from receiving an ad because of their age.  Second, the complaint names not only four defendant employers, but also a defendant class of employers and employment agencies.  Plaintiffs alleged there may be a thousand or more members of the defendant class, which could include every employer that has used age-limited Facebook ads.  In addition to the federal ADEA claim (which is expected to be amended once the charge process runs its course), plaintiffs have asserted claims under state law for discriminatory advertising and disparate impact recruiting and hiring.

While the named defendants are primarily large companies, the putative defendant class may also include many smaller employers.  Whether potentially implicated or not, companies are advised to review their job placement advertising.  At this juncture, it is too early to assess the class’s chances or the merits, either under the ADEA or the articulated state law claims.  We will monitor this matter closely.

If you have any questions or would like more information, please contact Brenton Bean at [email protected].

What Do You Call Your Chicken?

Posted on: November 9th, 2017

By: Jason C. Dineros

McDonald’s, the world’s second largest fast food chain (behind Subway, for those wondering), is facing a potential class action for advertising its food items containing chicken breast as being comprised of “100%” breast meat. Primarily targeting the Golden Arches’ advertising of its premium-priced, no-longer-a-cheap-date artisan chicken sandwiches, the proposed New York class action alleges these items also contain rib meat.

With the Food and Drug Administration’s implementation of mandatory food nutrition disclosures for all restaurants with at least 20 locations, and the paleo diet attracting nearly as many bandwagoners as the Los Angeles Dodgers, the trend of fast food dining for the last several years has been healthy and nutritious. Naturally—no pun intended—sourcing organic, farm-to-table, less-processed foods comes with it higher food costs.  But surprisingly, diners have been willing to fork over the premium.

While salads remain “puzzles” in fast food menu classifications (since at the end of the day, everyone has been guilty of intending to order “healthy”—only to somehow word-vomit, “I’ll get a #1 with a Coke,” like the first time they told their childhood crush they liked them), there has been a steady increase in premium-ingredient sandwiches, and with it, the increased challenge of controlling food costs. But the even greater challenge then comes of not only controlling the bottom line, but also maintaining brand integrity and avoiding false advertising lawsuits.

For further information or for further inquiries involving hospitality law, you may contact Jason C. Dineros, the Chair of the Hospitality Law Practice Team of Freeman Mathis & Gary, LLP, at [email protected].