Communication About Legal Services-- Advertising & Solicitation Flashcards
Firm Name
Must not be a trade name or other misleading name
Specialization
- A lawyer or law firm may publicly identify one or more areas of law in which the lawyer or the law firm practices, or may state that the practice of the lawyer or law firm is limited to one or more areas of law
- a lawyer may not hold herself out as a SPECIALIST UNLESS she is certified as a specialist in a particular area of the law by an approved private organization
- NY- Ad must indicate that the organization is not affiliated w/ NY government and that certification does not necessarily mean greater competence.
Def: Advertising
Any public or private communication made by or
on behalf of a lawyer or law firm about the lawyer or law firm’s services, the primary purpose of which is for retaining the lawyer or law firm.
Exception- communications to existing clients or other lawyers
- Computer-accessed communications can constitute advertisement. These include any communication by or on behalf of a lawyer disseminated through the use of a computer/electronic device such as websites, blog, email, popups, chat rooms, list servers, instant messaging, etc.
Attorney Advertising MUST include
(1) Name, principal law office address and telephone number of the lawyer or law firm whose services are being offered. [NOTE: The telephone number may contain a domain name, nickname, moniker or motto that does not otherwise violate the Rules]
(2) Any words or statements required by the rules must be clearly legible and capable of being read by the average person and understood if spoken aloud. In the case of a web site, the required words or statements shall appear on the home page.
(3) The label: “ATTORNEY ADVERTISING” must appear on the first page of any direct mail or on the home page of a an attorney’s web site. If the communication is in the form of a self-mailing brochure or postcard, the words “Attorney Advertising” shall appear therein. In the case of electronic mail, the subject line shall contain the notation “ATTORNEY ADVERTISING.”
Ads MAY include:
Assuming such information is true and not misleading:
- educational b/g
- dates of bar admission and areas of practice
- public offices and teaching positions held
- memberships in bar associations and other professional organizations
- foreign language FLUENCY
- names of regularly repped clients IF they consent in WRITING
- acceptable credit arrangements and participation in group or prepaid legal services programs
- bona fide professional ratings; a rating is not “bona fide” unless it is unbiased and nondiscriminatory
- legal fees, contingent fee rates, range of fees for services (and if so, the firm shall abide by the rates) (If fees are advertised, you cannot change the rate until after a reasonable period of time)
AND
Assuming the ad is otherwise in accord with the Rules, contains a disclaimer “PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME,” and can be factually supported by the lawyer as of the date on which the advertisement is published or disseminated, the ad MAY also contain:
- statements reasonably likely to create an expectation a/b the results the lawyer can achieve
- statements that compare lawyer’s services w/ another
- testimonials/endorsements of clients or former clients
- statements describing or characterizing the quality of the lawyer’s/firm’s services
Ads MAY NOT include
- paid endorsement or testimonial w/o disclosing that the person is being paid
- actors to portray the lawyer, firm members, clients, or events w/o disclosure
Domain Names
You can use a domain name that does not include the name of the lawyer/law firm provided that:
1- all pages of the website clearly & conspicuously include the actual name of the lawyer/law firm
2- lawyer/law firm in no way attempts to engage in the practice of law using the domain name
3- the domain name does not imply an ability to obtain results in the matter (NO wealwayswin.com)
When is a truthful statement misleading? (2)
1- if they omit a fact necessary to make the lawyer’s communication, considered as a whole, not materially misleading
2- if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion a/b the lawyer or the lawyer’s services, or about the results a lawyer can achieve, for which there is no reasonable factual foundation
Television & Radio Ads MUST . . .
- be approved by the lawyer
- include the name/address/phone number
- be kept for at least 3 years following the initial dissemination [RULE OF RETENTION]
Ads contained in a computer-accessed communication shall be retained for a period of not less than . . .
1 year
Def: Solicitation
any advertisement initiated by or on behalf of a lawyer/law firm that is DIRECTED OR TARGETED AT A SPECIFIC PERSON(S), or their family or legal representatives, the primary purpose of which is the retention of the lawyer/law firm, and a SIGNIFICANT MOTIVE for which is PECUNIARY gain.
RULE AGAINST SOLICITATION
Lawyer shall not engage in solicitation by:
- in person communication
- live telephone communication
- real time or interactive computer accessed communication (includes IM & Chatrooms; does not include websites, pop-up ads, or emails – those are ads but not solicitations).
UNLESS the recipient is:
- close friend
- relative
- former client
- existing client
EXCEPTION- no solicitation in ANY form of communication whatsoever is permitted if:
- the recipient has made known a desire not to be solicited; OR
- communication is false or misleading; OR
- solicitation involves coercion, duress, or harassment; OR
- he lawyer intends or expects, but does not disclose, that the legal services necessary to handle the matter competently will be performed primarily by another lawyer who is not affiliated with the soliciting lawyer as a partner, associate or of counsel
IF A LAWYER ENGAGES IN IMPROPER SOLICITATION, SHE CANNOT ACCEPT EMPLOYMENT RESULTING FROM SUCH COMMUNICATION
Targeted mail
- Form of allowed solicitation
- you may send direct mail to groups of people likely to need legal services
Rules Re: Targeted Mail
NOTE: These rules apply to lawyers not admitted in NY who solicit retention by NY residents
- brochures or postcards must say “attorney advertising”
- emails must have “attorney advertising” as subject line
- if includes sample retainer, must say “do not sign” on signature line
- FILING REQUIREMENT: filed at time of dissemination w/ the attorney disciplinary committee where lawyer has principal office; must disclose how the attorney learned the recipients’ identities and need for legal services.
- a LIST of the names and addresses of recipients must be kept for 3 years
Solicitation & Personal Injury/Wrongful Death Matters
No solicitation by lawyer or any agent/rep before the 30th day after the incident UNLESS a court filing is required in less than 30 days, in which case, no unsolicited communication before the 15th day after the incident.
