Law Firm Marketing and Arizona’s Anti-Spam Law
How familiar are you with legal requirements for Arizona law firm digital newsletters? Many law firms use electronic newsletters as a marketing tool to boost repeat, referral, and new business. Federal law provides a floor for commercial electronic communications. Many states, including Arizona, layer on their own, specific requirements as well.
Whether your firm already sends an electronic newsletter or is considering doing so, it’s critical that you become familiar with the requirements in your state. If you practice in Arizona or plan to send newsletters to recipients in this state, read on for an overview and quick quiz to test your knowledge.
Arizona Law Firm Newsletters: A Quiz
- Do you know when you must indicate in an email subject line that an email contains advertising material?
- How quickly must you honor requests to be removed from your e-newsletter mailing list?
- What is the penalty for violating Arizona’s anti-spam laws?
If you don’t know the answers to these important questions, keep reading.
Law firms marketing online in Arizona must comply with federal law, Arizona statutes, and applicable Arizona Rules of Professional Conduct. Our discussion will begin with a short overview of the core federal law that impacts law firm e-newsletter marketing.
Federal Laws above All
The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) requires that commercial electronic communication meet the following requirements:
- States who the message is from;
- Includes a subject line that accurately states the subject matter of the body of the email;
- Provides the sender’s physical address;
- Clearly labels the communication as an advertisement or solicitation; and
- Includes a no-strings opt-out provision and that senders process within 10 days of the request.
You can learn more about the application of the CAN-SPAM Act to law firms in our prior blog.
Arizona’s Anti-Spam Law
Arizona law supplements CAN-SPAM by placing strict requirements on unsolicited commercial electronic messages. Arizona statutes define target communications, outline procedures for recipients to decline further messages, prohibit the sale or transfer of email addresses, mandate marking affected emails as advertisements, and require accuracy of information in the message. Violation of Arizona’s anti-spam law is a class 2 misdemeanor, Ariz. Rev. Stat. § 44-1372.05, but anyone injured by the noncompliance, or the state’s Attorney General, may bring a civil action for damages, attorney’s fees, and costs, Ariz. Rev. Stat. § 44-1372.02.
And the Arizona Rules of Professional Conduct (Ethical Rules), particularly Rules 7.1 through 7.5, place additional requirements on Arizona law firm email marketing campaigns. We discuss Arizona’s anti-spam law and the attorney Ethical Rules together because their requirements interrelate.
What Is “Unsolicited Commercial Electronic Mail”?
An “unsolicited commercial electronic mail” under Ariz. Rev. Stat. § 44-1372(6) is “a commercial electronic mail message sent, without the consent of the recipient, by a person with whom the recipient does not have an established business relationship.” Law firms conducting e-newsletter campaigns in Arizona need to ensure that campaigns falling within these parameters comply with Arizona anti-spam laws.
In addition, it is important to note that Arizona’s anti-spam law prohibits the sale or transfer of email addresses of recipients who have asked to be removed from the email address list. Ariz. Rev. Stat. § 44-1372.01.
Which Law Firms Must Comply with Arizona’s Anti-Spam Laws?
Arizona anti-spam laws apply to unsolicited commercial email sent by law firms that do business in Arizona, that send unsolicited commercial email from computers located in Arizona, or that send unsolicited commercial email to Arizona email addresses. Ariz. Rev. Stat. § 44-1372.01(E).
What Requirements Exist for Unsolicited Law Firm Marketing Emails in Arizona?
Proper Markings as Attorney Advertising
The Arizona Ethical Rules mandate that unsolicited commercial emails meet certain requirements:
- The subject line must contain the words “Advertising Material;” and
- The words “Advertising Material” must appear at the beginning and end of the electronic message in a font that is twice the size of that in the body of the email.
The most salient requirement under Arizona law is that an unsolicited electronic message must be accurate in every respect. It may not contain false or misleading information, it must come from the domain name or server of the law firm sending the message or from a third party that consented to the use of its Internet address or domain, and it must contain accurate transmission and routing information. Ariz. Rev. Stat. § 44-1372.01(A).
Here are a few examples of potentially inaccurate information that may appear in an Arizona law firm’s email newsletter:
- Suggesting that fees stated are exact prices rather than ranges;
- Providing past client testimonials or success rates that would cause a reasonable person to expect similar results for himself;
- Claiming or implying a specialization or jurisdiction that the lawyer does not hold;
- Failing to include the name and physical address of at least one lawyer responsible for the communication;
- Holding out a lawyer to be an employee of the firm who is not;
- Failing to ensure that any lawyer purported to render a service does in fact do so; and
- Failing to list the jurisdictional limits of attorneys in a multi-state practice.
In addition, Arizona Rule of Professional Conduct 7.4 does not allow attorneys to state or imply that they are specialists unless they are, indeed, certified by the Arizona Board of Legal Specialization or an accredited national organization.
Inclusion of an Opt-Out Method
In the Grand Canyon State, unsolicited electronic mail must provide a procedure for the recipient to decline further messages. Ariz. Rev. Stat. § 44-1372.01(B).. And if a recipient chooses to opt out, Arizona attorneys may not send additional unsolicited email to that person. Ariz. R. Prof’l Conduct 7.3(b)(1).
Special Requirements for Personal Injury Matters
Special rules apply to unsolicited commercial electronic mail that relates to personal injuries. These emails may not involve coercion, duress, or harassment, and they may not relate to an injury or wrongful death that occurred in previous 30 days. Ariz. R. Prof’l Conduct 7.3(b)(2), (3). This latter requirement would most likely arise in special situations, such as Arizona attorney newsletters soliciting employment in mass torts or class actions.
Special Requirements When Legal Fees Are Discussed
If an unsolicited email message addresses a lawyer’s or law firm’s fees, it must also include this information:
- For contingent fees, disclose that the client is liable for all expenses regardless of outcome and whether the fee will be computed before or after expenses.
- For a stated range of fees, include a disclaimer that expenses vary depending on the matter litigated and that the client is entitled to an estimate of fees upon commencement of the client-lawyer relationship.
- If the message may contain information about fixed fees for certain services, include a disclaimer that these will apply only if the client’s matter falls within those services and that the client is entitled to an estimate of fees at the outset of the attorney-client relationship,.
- If listing specific or fee ranges, the lawyer shall honor the advertisement for a period of ninety (90) days after sending unless the advertisement specifies a shorter period.
Who Can Help Me Navigate the Rules for Arizona Legal Marketing and Spam?
Violation of Arizona’s anti-spam law is a class 2 misdemeanor.
Making sure your law firm’s communications comply with federal and Arizona legal requirements can be tedious, and the contents and construction of Arizona’s anti-spam law and attorney ethical rules may change over time.
If you need assistance with Arizona legal marketing from fellow attorneys who share your concerns about advertising ethically, fill out our online contact form or call us at (480) 744-7331. Our experienced legal marketers can help you build an ethically compliant online marketing plan—including an Arizona law firm newsletter—that gets you real results.
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