Advertising and Solicitation - July 20 Flashcards
Under the Model Rules of Professional Conduct (MRPC), do all types or methods of communication by a lawyer about herself as a lawyer or about her services fall within the rules of professional conduct? (Q)
Yes. Under the MRPC, any type or method of communication by a lawyer about herself as a lawyer or about her services falls within the rules of professional conduct. Thus, a communication under the MRPC includes advertising or solicitation, whether through print media, written correspondence, oral statements, or electronic means.
May a lawyer make a false or misleading communication about herself or her services? (Q)
No. A lawyer may not make a false or misleading communication about herself or her services. A false or misleading communication is one that:
contains a material misrepresentation of law or fact,
omits a fact necessary to keep the communication from being materially misleading,
is likely to lead a reasonable person to draw a conclusion about the lawyer or the lawyer’s services that has no reasonable factual basis; or
(August 2018 amendments) is likely to lead a reasonable person to think that he must take further action even if no action is actually required.
Thus, a statement might be misleading even if it is truthful on its face.
In a lawyer’s communication about himself or his services, might truthful statements about the lawyer’s past results for clients be considered misleading? (Q)
Yes. In a lawyer’s communication about himself or his services, the lawyer’s truthful statements about his past results for clients might be considered misleading. A statement of this kind might lead a reasonable person to believe that the lawyer can achieve the same result for other clients without reference to the particular facts and circumstances of each client’s case.
However, a lawyer might be able to prevent this kind of statement from being misleading by including an appropriate disclaimer or other qualifying language, such as a statement that prior results are not a guarantee of a similar outcome and that every case must be considered on its own merits.
In a lawyer’s communication about himself or his services, might an unsubstantiated statement comparing the lawyer’s fees or services to those of other lawyers be misleading? (Q)
Yes. In a lawyer’s communication about himself or his services, a communication comparing the lawyer’s fees or services to those of other lawyers, without substantiation, might be misleading if it is specific enough to lead a reasonable person to conclude that there is a verifiable basis for the comparison, even if there is not. However, a lawyer might be able to prevent this kind of statement from being misleading by including an appropriate disclaimer or other qualifying language.
Under the August 2018 amendments, this rule also applies to unsubstantiated statements about the lawyer’s services in general.
May a lawyer advertise his legal services through written, recorded, or electronic communication? (Q)
Yes, a lawyer may advertise his legal services through written, recorded, or electronic communication, including public media. Every advertisement must include the name and office address of at least one lawyer or law firm responsible for its content.
A lawyer represented clients in personal-injury cases. The lawyer’s average recovery for clients was $50,000, but the lawyer had recently obtained a judgment of $1,000,000 on behalf of a client. The client encouraged the lawyer to produce a television commercial advertising the lawyer’s services and volunteered to appear in the commercial. The lawyer agreed. In the commercial, the client said, “When I was injured, the lawyer fought for my rights and got me $1,000,0000. You can be next!” The commercial included no disclaimers or qualifying language about other client outcomes or differences among cases. The lawyer had the commercial aired on local television stations.
Has the lawyer committed professional misconduct? (Q)
Yes, the lawyer has committed misconduct. A lawyer may not make a false or misleading communication about the lawyer’s services. A communication is misleading if it would lead a reasonable person to believe that the lawyer can achieve the same result for others without reference to the facts of each case. However, a lawyer can avoid being misleading by including an appropriate disclaimer or other qualifying language.
Here, the client’s statement suggested that the lawyer could get the same result for others that he got for the client. However, the commercial contained no reference to the specific facts of the client’s case and no disclaimer about factual differences among cases. By touting the client’s award without qualification, the lawyer is misleading even reasonable viewers as to other potential results. Thus, the lawyer has committed professional misconduct.
In an advertisement, may a lawyer include the kinds of services the lawyer will provide, the basis for determining the lawyer’s fees, the lawyer’s foreign-language ability, and the names of clients or references, in addition to other information that might attract persons seeking legal services? (Q)
Yes. A lawyer’s advertising may include a range of information, including:
the kinds of services the lawyer will provide;
the basis for determining the lawyer’s fees, including prices for specific services and available payment or credit arrangements;
the lawyer’s foreign-language ability;
the names of regularly represented clients, if the clients consent;
the names of references; and
other information that might attract persons seeking legal services.
This range of permissible information is deliberately broad in recognition of the fact that advertising can be an effective way to inform the public of the availability of legal services. However, some states place more stringent limitations on the content of lawyer advertising.
Under the MRPC, what is a solicitation? (Q)
Under the MRPC, a solicitation is a communication (1) initiated by the lawyer and (2) directed to a specific person that (3) offers or can reasonably be understood to offer legal services when (4) the communication is significantly motivated by the lawyer’s monetary gain. Communications directed to the general public, such as advertisements, are not solicitations. In addition, a lawyer’s response to a request for information is not a solicitation, because the communication is not initiated by the lawyer.
In general, may a lawyer solicit clients in person, by live telephone, or by real-time electronic methods of contact? (Q)
No. In general, a lawyer may not solicit clients by live, person-to-person contact. This rule is meant to protect people from pressure or undue influence by an attorney who is attempting to be hired.
However, this rule does not apply if the person solicited:
is also a lawyer,
is related to the lawyer,
is a close personal friend of the lawyer,
has a prior professional relationship with the lawyer, or
(August 2018 amendments) routinely uses for business purposes the type of legal services the lawyer offers.
In general, may a lawyer use written, recorded, or electronic communications, other than real-time communications, to solicit employment from a person known to need legal services in a particular matter? (Q)
Yes. In general, a lawyer may use written, recorded, or electronic communications, other than real-time communications, to solicit employment from a person known to need legal services in a particular matter. Permissible methods of solicitation include chat rooms, text messages, or other forms of written communication that can be easily disregarded by the recipient. This type of communication does not present the same dangers of overreaching as a live, person-to-person communication because the recipient is not subject to immediate personal influence by the lawyer.
If a lawyer is otherwise allowed to solicit a person, may the lawyer solicit that person if the person has made known to the lawyer a desire not to be solicited? (Q)
No. Even if the rules of professional conduct would otherwise allow the solicitation of someone, a lawyer may not solicit any person who makes known to the lawyer her desire not to be solicited. Nor may a lawyer solicit anyone if the solicitation involves coercion, duress, or harassment.
What is a legal-service plan? (Q)
A legal-service plan is a prepaid or group plan, or a similar delivery system, that assists people in finding or obtaining legal representation. These plans are often analogous to medical insurance plans in providing legal representation to their members or subscribers.
What is a lawyer-referral service? (Q)
A lawyer-referral service is a service that holds itself out as providing referrals to lawyers for persons who need legal services. The public generally presumes these services to be consumer-oriented, to provide unbiased referrals of appropriately skilled lawyers, and to maintain client protections such as malpractice-insurance requirements and complaint procedures. Because the public makes these assumptions, lawyers are limited to using not-for-profit or qualified lawyer-referral services that have been approved by an appropriate regulatory authority as providing adequate protections for the public.
Despite the general rule against real-time solicitation of clients, may a lawyer participate in a prepaid or group legal-service plan that uses real-time contact to solicit memberships or subscriptions? (Q)
Yes. Despite the general rule against real-time solicitation of clients, a lawyer may participate in a prepaid or group legal-service plan that uses real-time contact to solicit memberships or subscriptions. However, the lawyer may only do so if the lawyer does not own or direct the plan. In addition, the lawyer may not personally solicit anyone in connection with the plan.
A lawyer may also contact representatives of an existing or potential prepaid or group legal-service plan to inform them of the lawyer’s availability to participate in the plan.
May a lawyer pay the fees of a legal-service plan or a lawyer-referral service? (Q)
Yes. A lawyer may pay the usual charges of a legal-service plan or a not-for-profit or qualified lawyer-referral service (i.e., a lawyer-referral service that has been approved by an appropriate regulatory authority).
