Advertising and Zealous Advocacy

Question 1

What constitutes advertising in PA?

Answer 1

All forms of communication.

Question 2

What requirements apply to advertising?

Answer 2

1. Must not be false and misleading (including unverifiable self-promotion)
2. Must keep records for past ads and pricing
3. No celebrity endorsements
4. No actors posing as the lawyers or clients
5. Must disclose location of offices
6. Cannot advertise to be a specialist unless certified as one (but you can say your general type of practice)
7. Can’t solicit business thorugh real-time direct contact.
   
   1. Except for other lawyers, family members, or people with whom you have pre-existing legal relationships.
   2. Except for volunteering purposes, too.
8. Can’t do general mailings if you know the state of the recipient would make them incapable of reasoned choice. (Otherwise allowed.)

Question 3

When is a frivolous claim permitted?

Answer 3

Only if accompanied by a good faith argument to extend the law.

Question 4

Can an attorney merely rely on the client’s factual assertions in claiming that a filing is not frivolous?

Answer 4

Kind of, but the attorney must make a reasonable investigation into the facts presented by the client.

Question 5

When can an action be frivolous?

Answer 5

When it is first filed OR after the development of facts, in which case the attorney must withdraw.

Question 6

What candor does an attorney owe to a tribunal?

Answer 6

They may not knowingly

• make false statements as to law or fact,
• fail to disclose controlling authority,
• offer evidence that is known to be false
  
  • you may refuse to offer evidence that you reasonably believe to be false, except for a criminal defendant’s own testimony.

Question 7

What do you do if you know evidence submitted was false or perjury has been/is about to be committed?

Answer 7

1. Attorney must attempt to dissuade the witness from lying.
2. Failing that, the lawyer may reveal the matter to the court and seek to withdraw. This will be denied in a criminal matter.
3. In a criminal trial, put the client on the stand and instruct him to “tell his story” without objection or correction.

Question 8

What constitutes tampering with evidence/witnesses?

Answer 8

• The obvious stuff
• Any ex parte communications with judges, jurors, and potential jurors (including for pending and impending litigation!)
• Out-of-court communications, especially with the media, that would have a likelihood of prejudicing the proceeding
  
  • UNLESS the attorney is responding to protect a client from undue pbulicity not initiated by the client or lawyer.
• Making any public comment about the veracity of a witness, under any circumstances

Question 9

What special rules apply to prosecutors?

Answer 9

1. They may only bring a case if they have probable cause to do so.
2. The prosecutor’s confidentiality arrangement with the state does not include exculpatory information, which the prosecutor must turn over.