Advertising and soliciting (duties to 3ps, duty of candor)

Question 1

Definitions

Answer 1

1. advertising: communication with the public at large
2. solicitation: individual contact designed to entice a layperson into hiring the lawyer
3. advertising is constitutionally protected; States may adopt reasonable regulations to ensure that the advertising is not false or misleading, but may not prohibit lawyer advertising outright
   i. may prohibit all lawyer advertising that is false or misleading
   ii. may forbid in-person solicitation for profit
   iii. may require commercial advertisers to make certain disclosures if such a requirement is not unduly burdensome and is reasonably related to the state’s interest in preventing deception
4. State commercial speech regulation must be narrowly drawn and must directly and materially advance a substantial government interest (intermediate scrutiny)

Question 2

Advertising prohibitions

Answer 2

1. must not make a false or misleading statement
   i. must not omit material Information
   ii. must not create unjustified expectations
   iii. must not make unsubstantiated comparisons
   iv. must not harass
   a. Targeted direct mail is OK, but must meet requirements for labeling as advertising material.

CA also prohibits

i. guarantee or warranty of an outcome
ii. words or symbols suggesting quick cash or quick settlement
iii. impersonations of lawyers or clients without disclosing that it is a dramatization
iv. contingency fee offers that do not warn clients they may have to pay litigation costs

v. CA some communications are rebuttably presumed to be false or misleading:
a. communications delivered to clients in hospital
b. clients who are suffering mental or physical stress
c. mailings seeking fee-paying work not clearly labeled as advertising
d. testimonials or endorsements without disclaimers that they are not a promise about results in the client’s case

Question 3

Advertising requirements

Answer 3

i. every ad must include the name and office address of at least one lawyer or law firm that is responsible for its content
a. must be labeled as advertising
ii. Must keep records of content and placement of ads for 2 years.

Question 4

Lawyers may communicate in advertising:

Answer 4

i. names of lawyers or firms and contact information or websites
ii. types of services the lawyer will or will not undertake (but cannot imply lawyer is a specialist unless so certified by an ABA or state accredited authority, in which case the certification must also be clearly communicated)
iii. lawyer’s foreign language ability (“se habla espanol!”)
iv. references, but must obtain consent before naming sample clients in an ad

Question 5

a lawyer must not pay people for recommending him, except:

Answer 5

i. referral fees paid to approved lawyer referral services
ii. lawyers may pay others for designing and running ads
iii. legal aid offices and group legal service plans may advertise the services the organization provides

Question 6

Claims of legal specialties

Answer 6

i. Can explain your fields of practice but cannot advertise claims of specialization unless you are a certified specialists.
a. CA board of legal specialization requirements (4 Es)
i) Experience
ii) Examination
iii) Education
iv) Evaluation

b. ABA allows certification by approved organizations which must be identified in the communication.

Question 7

Solicitation prohibitions

Answer 7

1. Solicitation = individualized contact with laypersons
2. no real-time solicitations of people for fee-paying work (i.e. pro bono work solicitation is OK) as a lawyer by initiating a live or telephone contact with a specific person, unless the person is related or there is a personal or professional connection
   i. CA prohibits all telephone contact, not merely live telephone contact
   ii. CA prohibits any type of solicitation of employment to persons in a matter if the lawyer knows is already represented by counsel in the matter
3. Solicitation extends to real-time electronic contact by ABA
   i. CA reads it only as live or telephone contact
4. note:
   i. cannot use agents to solicit in a manner the lawyer could not
   ii. does not apply to offers for free legal services
   iii. may solicit from anybody where there is a personal or professional relationship (family, friends, former clients, etc.)

Question 8

Permitted solicitations

Answer 8

1. lawyers may send truthful direct-mail solicitations targeting people known to face a specific legal problem
2. lawyers can personally contact members of a group that proposes to adopt a prepaid or group legal plan
   i. the plan can also live-contact prospective subscribers not known to need specific legal services
3. all written or recorded solicitations must be labeled as advertising, except for solicitation of personal or professional contacts
4. a lawyer must not solicit any person who has indicated they do not wish to be solicited, regardless of relationship