Advertising Reminders

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Avoiding Liability Bulletin – January 2013

…It is not uncommon for those who advertise their services, credentials, or expertise to “toot their horns” a bit in order to attract more business. There is nothing wrong with this – provided that the practitioner understands that the advertisement can have a negative impact upon his or her professional career if one is not careful or mindful about the many ways advertising can have an impact. I have written about advertising before, but a few reminders and cautions cannot hurt! As you likely already know, advertisements must not be false, misleading, fraudulent, or deceptive. This general rule seems simple and perhaps self-evident, but there are many ways that the rule (the law in most, if not all, states) may be violated.

Links to more detailed bulletins expanding on these reminders have been included.

I have spoken with therapists who may have misstated or misrepresented something that they thought was not very important, like stating that they were a member of a professional organization, when in fact they had dropped their membership (e.g., non-payment of dues) at an earlier time. I have also talked with therapists who have been cross-examined at a deposition or at trial about misrepresentations appearing in their curriculum vitae or in an advertisement. The opposing lawyer would of course argue that if the therapist would misrepresent something as inconsequential as membership in a professional organization, he or she might misrepresent pertinent facts in the case being litigated.

Advertising “expertise” or a specialization can have an impact upon one’s liability, since if you hold yourself out as an expert or as having special knowledge in a given area, you may be held to a higher standard of care than the usually applicable reasonable practitioner test- that is, you may be held to the standard of care of a specialist or expert. The use of testimonials can be problematic as well – especially if the indication is that the success you have had with a former patient will be duplicated with future patients.

Advertising by pre-licensed persons can be problematic when the pre-licensed person does not make the disclosures necessary as per state law, regulation, or ethical standards. My experience has been that the most common problem with advertising by pre-licensed persons is that they all too often do not make sufficient disclosures indicating that they are not licensed, that they work under supervision, or that they are employed by another person or entity. My experience has also been that the employer of the pre-licensed person, whether a private practitioner or a non-profit corporation, often does not exert enough control over the content of such advertising.

Use of the word “Doctor” or the abbreviation “Dr.” can be problematic, depending upon state law and the manner in which such references are made. This particular issue usually arises with respect to those who have a Ph.D. or other doctorate degree, and who may refer to themselves as “doctor” without use of the Ph.D. Additionally, there may be other words or phrases that present problems under state law – especially with respect to fees. In most states, false or misleading advertising is not only grounds for disciplinary action by the licensing authority, but it is a misdemeanor (crime). I have previously written about these issues on several other occasions, and I refer you to review these articles in the archives section (advertising) of the Avoiding Liability Bulletin at the CPH and Associates’ website.


Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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