Iowa lawyers who previously have relied on referrals and volunteer service in their communities to build their client bases are cautiously dipping their toes into the waters other professional companies have been swimming for years and advertising their services.

“It’s kind of like jumping into a cold pool,” said Sharon Malheiro, an attorney with the law firm of Davis Brown Koehn Shors & Roberts who advises her colleagues on ethics. “We know the rules are less restrictive than they were, but it doesn’t feel comfortable because we’ve grown up with the rules as they were.”

The Iowa Supreme Court lifted some of the disclosure requirements for attorney advertising three years ago, but the state still has the most restrictive canons in the country. “It’s not that you can’t do anything here that you couldn’t do anywhere else,” said Nick Critelli, who served on several Iowa State Bar Association task forces studying issues surrounding attorney advertising and the group’s current president. “You just have to be truthful.

“The idea is not to prevent [dissemination of] information, but to make sure the public gets good, quality information and is not misled. When misled, the public tends to take it out on the judicial system, and their faith in the quality of justice goes down.”

Claims made in lawyer advertising must be objectively verifiable, including documentation of the number of hours devoted to a particular area of law and the number of hours of continuing legal education the attorney has received in that field. “Otherwise, it’s all self-proclaimed expertise, hype and puffing,” Critelli said.

He said “classic disclosure” rules still apply. For example, a lawyer who advertises “no fee unless we win” must disclose whether the client would be expected to pay the costs of litigation, such as fees for expert witnesses and investigators, in the event of an adverse judgment. Also, attorneys must disclose whether the contingency fee is figured before or after the deduction of the costs of litigation, and they cannot make emotional appeals, boast about the quality of their service, or claims about their ability to get cases to trial quickly and bring in large verdicts.

A study commissioned by the Iowa State Bar Association helps explain Iowa lawyers’ reticence toward advertising. The research, conducted a few years ago by Frank N. Magid Associates Inc., a nationwide media and business consulting firm whose Iowa office is located in Marion, “proved the wisdom of the ancient canon of ethics, that a lawyer should avoid offensive behavior because it will have an effect on clients,” Critelli said.

“Old-school lawyers, those practicing 15 or 20 years, grew up with the idea that it’s not only unethical to advertise, but it’s just seedy in a sense, and they don’t want to have an open mind about it,” Malheiro said. However, she said, some younger, Internet-savvy lawyers “don’t understand why we can’t have something a little looser.”

As law firms become more regional and practice in more than one state, “they’re pitching [their services] to Iowa companies” without actually advertising in Iowa, she said. “We’re being constrained and our competitors, who are not just Iowa lawyers, do not have the same constraints. We feel we’re not able to volley back.”

Traditionally, attorney advertising has appeared in telephone directories, but now lawyers are looking at other options to expand their stable of clients. “There are other mediums a corporate attorney would take advantage of, targeted to the clients you’re trying to serve,” she said. “The arena for competition changes by the type of practice, and the Yellow Pages may not be an area where there’s a level playing field for corporate attorneys.”

Malheiro said the shareholders at the Davis law firm wrestle regularly with advertising and marketing issues. “On the one hand, you come out of law school and want to be a lawyer and practice law, and on the other hand, you have to have clients and have that marketing component,” she said. “It’s not a comfortable thing. Sometimes, it’s hard to find a marketing firm that will work with our rules. It’s so different than what they learned in Marketing 101.

“So far, a lot of lawyers have decided not to do anything rather than risk” license revocation or suspension because of a marketing strategy that might violate ethics rules, she said. “There’s sort of that fear factor.”

The Iowa Bar’s rules on advertising date back to 1978, when the U.S. Supreme Court upheld an Iowa decision on the right of states to regulate commercial speech. “Our rules were upheld, and Iowa became known nationally for its professionalism with respect to lawyer marketing and advertising,” said Critelli, who represented the bar association in the case. Since then, he’s served on three bar association task forces studying the constantly evolving issue of lawyer advertising.

“There’s always a review process because times change,” he said. “Marketing, as it existed in 1978, 1988 and 1998, is different than it exists in 2004.”

As options for lawyer advertising have increased with widespread use of the Internet, some states with less restrictive ethics canons are looking to Iowa lawyers for help. The state is known not only for its conservative approach to advertising and marketing, but also for leading the way in continuing legal education for lawyers and for a requirement that they maintain separate, audited trust accounts. “I will stack our Iowa lawyers against any in the country,” Critelli said.

Some states, however, have failed to enforce their own rules, Critelli said, citing California and Minnesota as examples. “Most of them, when you talk to them, want to know, how do you stop it?” he said. “Once the toothpaste is out of the tube, how do you stop it?

“Minnesota is a classic example,” said Critelli, who is frequently asked by other state bar groups to consult on marketing and advertising issues. “After spending three or four days with those people, I concluded at the end of the day that there’s nothing wrong with their rules. There’s not a state that doesn’t prohibit advertising that is false, deceptive and misleading.”