Advertising_Solicitation Flashcards
What are the restrictions on a firm’s name?
The firm name must not be misleading.
Trade names are NOT permitted.
(e.g. “Aaaabest Law Firm” or “Law Firm of NY”)
How can an atty communicate a specialization?
Lawyer may not hold himself out as specialist UNLESS”
- Certified by a private organization approved by the ABA or another state
- Discloses that NY authority does not recognize specialization certification
But Lawyer may publicly identify 1+ areas of law in which the lawyer or the law firm practices/restricts her practice.
What is advertising?
(purpose = determine whether disclosures nec’ssy)
Advertising =
- is any public or private communication
- made by/on behalf of a lawyer/law firm
- about the lawyer/law firm’s services
- the primary purpose of which is for retaining the lawyer or firm
Includes “computer-accessed communications”
- (blog, website, pop-up ad, listserve, IM/chatroom, LinkedIn)
EXCEPTION: communications to existing clients or other lawyers.
Advertisement: Mandatory requirements
Advertisements MUST include:
- Name,
- Principal law office address and telephone number of the lawyer or law firm whose services are being offered
- (telephone number may contain a domain name, nickname, moniker or motto that does not otherwise violate the Rules)
- The label “attorney advertising” must appear on the first page of any direct mail or in the subject line of any email
Any words or statements required by the Rules must be:
- clearly legible
- capable of being read by the average person and of being understood if spoken aloud
- On websites, the statements must appear on the home page
What MAY advertisements include?
IF truthful and not misleading:
- Educational background and degrees
- Dates of admission to the bar and
- Areas of practice
- Public offices and teaching positions held
- Memberships in bar assoc’ns and other profess’l org’s
- Foreign language FLUENCY
- Names of regularly represented clients, IF clients consent in writing
- Acceptable credit arrangements and participation in group or prepaid legal services programs
- Legal fees, contingent fee rates, range of fees for services, hourly rates and fixed fees for specific services
- (–> firm must abide by that rate for a reasonable period of time)
-
Bona fide professional ratings,
- (NOT “bona fide” unless it is unbiased and nondiscrimination)
Advertisement MAY contain (cont’d):
L advertisement MAY contain any of following statements likely to create client expectations:
- 1) Stmts that are reasonably likely to create an expectation about the results the lawyer CAN achieve;
- 2) Stmts that compare lawyer’s servs w/ those of another lawyer;
- 3) Testimonials or endorsements of clients or fmr clients;
- OR 4) Stmts describing or characterizing the quality of the lawyer’s or law firm’s service
IF:
- Contains disclaimer “prior results do not guarantee similar outcomes”
- Statement can be factually supported as of the date ad was published/disseminated
Advertisment may NOT include:
1) A p_aid endorsement or testimonial_ about lawyer/law firm without disclosing person is being compensated
2) Actors to portray the lawyer, firm members, clients or events without disclosure
Advertisements: Domain Names
May use a domain name that does not include the name of the lawyer/law firm IF:
- All pages of the website clearly and conspicuously include the actual name of the lawyer/law firm;
- Lawyer/law firm in NO way attempts to engage in the practice of law using the domain name;
- The domain name does not imply an ability to obtain results in the matter (winnerslaw.com)
What are additional reqs for TV and radio advertising?
Television and radio ads must be
- Approved by the lawyer,
- Include the name, address, telephone number for the lawyer/firm and
- kept for 3 YEARS following the initial dissemination
Is soliciation permitted?
All solicitations are advertising and are subject to the rules for advertising… PLUS some add-on obligations.
What forms of solicitation are prohibited?
If the solicitation is improper –> cannot accept employment resulting from such communication
A lawyers shall NOT engage in solicitation by:
- In-person communication
- Live telephone communication
- Real-time or interactive computer accessed communication
- NOTE: Does not include websites, pop-up ads, or emails
Exceptions: recipient is
- A close friend;
- Relative;
- Former client;
- OR An existing client
When are PERMITTED forms of solicitation prohibited?
No Solicitation (in ANY FORM) allowed if:
- The recipient has made known a d_esire not to be solicited_;
- Communication is false or misleading;
- The solicitation _involves coercion, duress, harassmen_t
- OR L intends/expects, but not disclose, that the legal services nec’ssy to represent competently will be performed primarily by ANOTHER L who is not affiliated with the soliciting lawyer as a partner, associate or counsel
Advertisement/Solication by Targeted Mail
You MAY send direct mail to groups of people likely to need legal services.
BUT if NY lawyer/solicit NY residents, to be proper (–> can accept employment):
- If a retainer agreement is included in the solicitation the words “do not sign” shall appear on the client signature line
- Self-mailing brochures or postcards, the words “Attorney Advertising” appear on it; email has to say “Attorney Advertising” in the subject line
- If prompted by a specific occurrence involving or affect a recipient –> MUST disclose how the attorney learned the recipient’s identity and need for legal services
- A list of the names and address of the recipients must be kept for three years.
- No solicitation for personal injury or wrongful death suits by the lawyer or any agent/representative before the 30th DAY of the incident, UNLESS a filing is required in less than 30 days, in which case no unsolicited communication until after the 15th DAY after the incident
Advertisement: Phone #
May contain motto, nickname, domain name that does not otherwise violate the rules
(not misleading/create client expectations)
Advertisement = misleading?
False Statements
+ Truthful statements IF:
- Omit fact necessary to make entire communication misleading
- ex: I have never lost a case (but settled all)
- Substantial likelihood that reasonable person would formulate a specific conclusion about L/services/results L can achieve for which there is NO factual foundation
- ex: I have never lost a case
